I> 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Of  t'li'incntary  tiPatises  on  all  the  priaciiial  subjects  of  the  law.     The 
special  features  of  these  books  are  as  follows: 

1.  A   succinct   statement  of  leading  principles   in  blacklet- 

ter  type. 

2.  A    more    extended    commentary,    elucidating    the    princi- 

ples. 

3.  Notes  and  authorities. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

$3.75   per   volume,    including    delivery. 

Bound  in  American  Law  Buckram. 


].  Norton  on  Bills  anil  Notes.     (3d  Ed.) 

L'.  Clark  on  Criminal  Law.     (-d  Ed.) 

:;.  Shipman  on  Comnion-Law  I'leading.     ('2d  Ed.) 

4.  Clark  on  Contracts.     (2d  Ed.) 

."..  Black  on  Constitntional  Law.     (3d  Ed.) 

li.  Fetter  on  Equity. 

7.  Clark  on  Criminal  Procedure. 

5.  Tirtany  on  Sales.     (2d  Ed.) 
1>.  Clenn  on  International  Law. 

10.  .Ta.i:j:ard  on  Torts.     (2  vols.) 

11.  P.lack  on  Interpretation  of  Laws. 

12.  Hale  on  Bailments  and  Carriers, 
i:;.  Smith  on  Elementary  Law. 

14.  Hale  on  Damages. 

l.j.  Hopkins  on  Real  Property. 

IG.  Hale  on  Torts. 

17.  Tiffany  on  I'ersons  and  Domestic  Relations.     (2d  Ed.) 

18.  Croswell  on  E.xecutors  and  Administrators. 

19.  Clark  on  Corporations.     (2d  Ed.) 

20.  George  on  Partnersliip. 

21.  Shipman  on  Eipiity  Pleadii'.g. 

22.  McKelvey  on  Evidence.     (2d  Ed.) 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 
2.").  Eaton  on  Equity. 

20.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on  Wills. 

28.  Vance  on  Insurance. 

20.  Ingersoll  on  Public  Corporations. 

.^0.  Hughes  on  Federal  .Turisdiction  and  Procedure. 

31.  Childs  on  Suretyship  and  Guaranty. 

32.  Costigan  on  American  Mining  Law. 
.33.     Wilson  on  International  Law. 

In  preparation:     Handbooks  of  the  law  on  other  subjects  to  be  an- 
nounced later. 

Published    and   for    sale   by 
WEST  PUBLISHING  CO.,   ST.  PAUL,  MINN. 

C5855g 


HANDBOOK 


ON    THE 


LAW  OF  REAL  PROPERTY 


BY 
EARL  P.  HOPKINS,   A.  B.,  LL.  M. 

Author  of  Problems  and   Quiz  on  Criminal  Law,   Contracts,  Criminal  Procsdnre, 

Constitutional  Law,  eta 


St.  Paul,  Minn. 

WEST  PUBLISHING  Ca 

1896 


COPTRIGHT,  1896, 
BY 

WEST  PUBLISHma  COMPANY. 


To 

EMLIN  McCLAIN,  A.  M.,  LL.  D.. 

Chanoellor  Lav»  Department  State  University  of  Iowa, 

this  volume  is  affectionately  inscribed. 


ce'Tr,?^ 


PREFACE. 


This  volume  is  the  result  of  an  attempt  to  put  the  fundamental 
rules  governing  the  law  of  real  property  into  a  form  as  easy  of  com- 
prehension as  possible,  and  so  arranged  that  investigation  of  any 
part  may  be  made  with  ease,  promptness,  and  certainty.  It  will  be 
found  that  many  of  the  seeming  technicalities  of  the  subject  disap- 
pear with  the  statement  of  the  reasons  on  which  they  are  based. 
These  reasons  are  in  many  cases  historical,  and  therefore  as  much  of 
the  history  of  the  law  of  real  property  has  been  given  as  is  necessary 
for  an  understanding  of  these  reasons;  but  the  mere  curiosities  of 
English  law,  and  the  interesting,  but  useless,  legal  antiquities  some- 
times found  in  books  on  this  subject,  have  been  excluded.  The 
effort  has  been  to  present  a  clear-cut  picture  of  the  English  system  of 
real  property  law  as  introduced  into  this  country,  and,  with  this  as 
a  basis,  to  explain  the  effect  of  the  statutory  changes  which  have 
been  made  in  many  parts  of  that  system.  To  do  this,  it  is  first 
shown  to  just  what  kinds  of  "things  owned"  the  law  of  real  property 
applies,  and  then  the  "equation  of  estates"  is  taken  up,  and  carefully 
worked  out.  This  is  the  backbone  of  our  whole  scheme  of  land 
ownership.  The  black-letter  text  shows  the  principles  on  which 
estates  are  classified,  and  the  relation  of  the  various  possible  inter- 
ests in  land  to  each  other,  and  to  the  whole  ownership.  In  following 
out  the  discussion  under  the  several  principles  of  classification, — 
for  instance,  in  treating  of  future  interests,— the  essential  facts 
which  distinguish  the  various  future  estates  have  been  emphasized, 
and  then  the  incidents  common  to  all  future  estates  treated  together, 
for  the  sake  of  clearness  and  ease  of  comprehension.  So  much  of 
the  law  of  persons  as  is  peculiar  to  real  property  will  be  found  col- 
lected in  one  chapter.  In  places  where  the  law  has  become  un- 
settled from  confusion  in  the  use  of  tenns,  as  in  the  law  of  fixtures 
and  the  classification  of  trusts,  the  terminology  adopted  has  been 
explained,  and  then  followed  throughout.     While  there  has  been  no 

KEAL  PROP.  (V) 


VI  PREFACE. 

attempt  to  harmonize  the  cases  on  fixtures,  a  classification  and  work- 
ing theory  has  been  suggested  which  it  is  believed  will  prove  useful. 
Special  attention  has  been  paid  to  the  latest  authorities  as  showing 
what  parts  of  the  law  of  real  property  are  now  in  process  of  growth. 
The  recent  "Torren's  Title  Act,"  of  Illinois,  has  been  explained  at 
some  lengtli,  because  it  is  in  all  probability  the  forerunner  of  the 
introtUiction  into  this  country  of  some  system  of  registration  of  title 
in  place  of  our  present  system  of  the  registration  of  conveyances. 

KP.  H. 

St  Paul.  Minn.,  August  1,  1806. 


TABLE  OF   CONTENTS, 


CHAPTER  I. 

WHAT  IS  REAL  PROPERTT. 


a 


CHAPTER  n. 

TENURE  AND  SEISIN. 


9.    Tenure 
10.    Seisin  . 


CHAPTER  m. 

ESTATES  AS  TO  QUANTITY— FEE  SIMPLE. 

11.  Estate  Defined  

12.  Classification  of  Estates 

13.  Quantity  of  Estates 

14-15.    Freehold— Estates  of  Inheritance 

16.  Fee  Simple   

17.  Creation    

18.  Right  of  User 

19.  Alienation    

REAL  PROP.  ^^") 


P&K« 

1-3 


Section 

1.  Real  and  Personal  Property 

2.  Real  Property— Land   

3.  Things  Growing  on  Land 

4.  Fixtures    ' 

5.  What  Fixtures  Removable   

6.  Time  of  Removal 

7.  Equitable  Conversion 

Personal  Interests  in  Land 24-25 


7-10 
10-11 
11-22 
22-23 
23-24 


26-31 
31-32 


83 

33 

84 

S4:-35 

35-30 

86-39 

39 

39-41 


Vlil  TABLE   OF    CONTENTS. 

CHAPTER  IV. 

ESTATES  AS  TO  QUANTITY  (Continued)— ESTATES  TAIIj. 

Section  Pas* 

20.    Estates  Tail  Defined 42-43 

21-22.    Classes  of  Estates  Tail •1^-44 

23.    Origin  of  Estates  Tall 44-47 

24-2").    Creation  of  Estates  Tail 47-49 

26.  Incidents  of  Estates  Tail 49-50 

27.  Duration  of  Estates  Tail 50-52 

28.  Tenant  in  Tail  After  Possibility  of  Issue  Extinct 52 

29-30.    Estates  Tail  In  the  United  States 5^-53 

31.  Quasi  Entail  53-54 

CHAPTER  V. 

ESTATES  AS  TO  QUANTITY  (Continued)— CONVENTIONAL  LIFE 

ESTATES. 

32.  Life  Estates  Defined 55 

33.  Creation  of  Life  Estates 55-56 

34-3G.          ConTentional  Life  Estates 56-58 

37.    Incidents  of  Life  Estates 58-07 

38-39.          Estates  per  Autre  Vie 67-03 

CHAPTER  VI. 

ESTATES   AS   TO   QUANTITY   (Continued)— LEGAL   LIFE   ESTATES. 

40-41.    Legal  Life  Estates— Estates  by  Marriage 69-70 

42.    Estate  duxlng  Coverture 70-73 

43-44.    Curtesy 73-76 

45.  In  What  Estates 76-79 

46.  Incidents 79-80 

47.  How  Defeated  81-82 

48.  Statutory  Changes   82-83 

49.  Dower— Definition    83-85 

50.  In  What  Estates 8(>-93 

61-52.           Quarantine    94-95 

53,  Assignment   95-97 

54.  When  Value  Estimated 97-98 

65.                Method  of  Division 98-99 


TABLE    OF   CONTENTS.  IX 

Bection  Page 

56.  By  Whom   Assigned 99-100 

57.  Recovery  by  Action 100-101 

68-59.  Incidents    101-102 

GO.  How  Defeated  102-111 

61.  Statutory  Changes    112 

62.  Homestead    H- 

63.  Who  Entitled  to  Homestead 113-115 

(M.  Duration  of  Exemption. 115 

65.  In  What  Estates 116-117 

66-67.  Amount   of  Exemption 117-118 

68.  How  Acquired  118-110 

69.  Selection    120 

70.  How  Lost 120-124 

71.  Privileged  Debts  124-126 

72.  Federal  Homestead  Act 126-127 


CHAPTER  Vn. 

ESTATES  AS  TO  QUANTITY  (Continued)— LESS  THAN  FREEHOLD. 

73-75.  Estates  for  Years 12S-129 

76.  Creation  of  Estates  for  Years 130-134 

77.  Rights  and  Liabilities  of  Landlord  and  Tenant. 134 

78-79.  Rights  under  Express  Covenants 134^137 

80-81.  Rights  under  Implied  Covenants 138-141 

82.  Rights  Independent  of  Covenants 141-146 

83.  Transfer  of  Estates  for  Years 147-150 

84.  Termination  of  Estates  for  Years 150-153 

85.  Letting  Land  on  Shares 154-155 

86.  Tenancies  at  Will 155 

87.  Creation 155-150 

88.  Incidents    156-157 

89.  Termination    157-158 

90.  Tenancies  from  Year  to  Year 158 

91.  Creation    15S-160 

92.  Incidents    160 

93.  Termination    161-162 

94.  Letting  of  Lodgings 1G2-1G3 

95.  Tenancies  at  Sufferance 163 

96.  Creation    163-164 

97.  Incidents    164 

98.  Termination 1G5 

99.  Licenses    165-167 

100.  Revocation  of  Licenses 167-168 


TABLE    OF   CONTENTS. 


CHAPTER  Vm. 

ESTATES  AS  TO   QUALITY-ON   CONDITION-ON  LIMITATION. 

Section  ^*f' 

101.  Estates  as  to  Quality ^^'-^ 

102.  Estates  on  Condition 16£^170 

103-104.  Conditions  Precedent  and  Subsequent 170-172 

105.  Void  Conditions  172-173 

10(i.  Termination  of  Estates  on  Condition 174-17G 

107.  Who  can  Enforce  a  Forfeiture 176-177 

108.  Estates  on  Limitation 177-178 

109.  Base  or  Determinable  Fees 178-179 


CHAPTER  rX. 


110. 

111. 

112. 

113. 

114. 

115. 

110. 

117. 

118. 

119. 

120. 

121. 

122. 
123-124. 
125-126. 
127-129. 

130. 

131. 

132. 
13a-134. 

135. 

136. 

137. 
18&-139. 

14a 


ESTATES  AS  TO  QUALITY  (Continued)— MORTGAGES. 

Mortgage  Defined    180-182 

Parties  to  a  Mortgage 182 

Nature  of  a  Mortgage 182-184 

What  may  be  Mortgaged 184r-18o 

Form  of  a  Mortgage • 186-194 

Rights  and  Liabilities  of  Mortgagor  and  Mortgagee 194 

Nature  of  Mortgagor's  Estate 195-196 

Possession  of  Mortgaged  Premises 196-197 

Insurance  on  Mortgaged  Premises 197-199 

Accounting  by  the  Mortgagee 199 

Debits    199 

Credits   200 

Annual  Rests 200-203 

Subrogation   : 203-205 

Assignment  of  the  Equity  of  Redemption 205-209 

Assignment  of  the  Mortgage 209-212 

Priority  of  Mortgages  and  Other  Conveyances 212-218 

Registration     218-227 

Dlscliarge  of  a  Mortgage 227 

Performance    227-231 

Merger   231-233 

Redemption   233-238 

Form  of  Discharge 238-239 

Foreclosure    239-242 

Kinds  of  Foreclosure 242-250 


TABLE   OF   CONTENTS. 


XI 


Section 
141. 

142. 
143-144. 

145. 

146. 

147. 
148-149. 
150-151. 

152. 

153. 

154. 
155-156. 
157-158. 


CHAPTER  X. 

EQUITABLE  ESTATES. 

Page 

OKI  _'>fi2 
Legal  and  Equitable  Estates -^^  -_ 

Use  or  Trust  Defined 

The  Statute  of  Uses 253-254 

Wben  the  Statute  does  not  Operate 254-257 

257 
Classification  of  Trusts 

258 
Express  Tmsts  

Executed  and  Executory  Trusts 25&-2o9 

Creation  of  Express  Trusts 260-264 

Implied  Trusts  264-265 

Resulting  Trusts  265-268 

Constructive  Trusts   269-2.1 

971 —274 

Incidents  of  Equitable  Estates ^'^  ""^ 

274—277 
Charitable  Trusts   ^<t--<« 


CHAPTER  XI. 

ESTATES  AS  TO  TIME  OF  ENJOYMENT-FUTURE  ESTATES. 

159.  Estates  as  to  Time  of  Enjoyment 2i9 

979 

160.  Future  Estates  

079 

161.  Future  Estates  at  Common  Law 

280-'^81 

162.  Reversions   

281  — 2S2 

163.  Possibilities  of  Reverter ^°^  -^^ 

.    ^  282-286 

164-165.  Remainders   

166  Successive  Remainders 

167.  Cross   Remainders   : iiou--o. 

OO-T 

1G8  Alternate  Remainders  ^' 

1G9.  Vested.  Remainders   ^co^-o^ 

170-173  Contingent    Remainders 289-20o 

174.  Rule  in  Shelley's  Case • ^jo-^jo 

175     Future  Estates  under  the  Statute  of  Uses 298 

''98— '■'99 

176.  Future  Uses   " 

999 

177.  Springing   Uses    " 

178.  Shifting  Uses  

179-180.    Future  Estates  under  the  Statute  of  Wills-Executory  De- 

vises    

181.    Incidents  of  Future  Estates ov^.yj 

182  Tenure  of  Future  Estates 303-304 

304 
183.  Waste  


Xll  TABLE    OF    CONTENTS. 

Section  ^'"^' 

184.  Alleuation    30a 

ISo.  Descent  of  Future  Estates 306 

18G-IS9.    Powers    30C-309 

100-191.  Creation    309-310 

192.  Classes  of  Powers  as  to  Donee 310 

193.  Powers  Appendant  and  in  Gross 310-311 

194.  Powers  Collateral,  or  Naked  Powers 311 

19").  Classes  of  Powers  as  to  Appointee 311 

190.  General  Powers   312 

197.  Special  Powers  312-313 

198.  Execution   314-319 

199-200.  Rights  of  Creditors 320 

201.  Destruction    321-322 

202.  Rule  against  Perpetuities 322-325 

203.  Estates  Subject  to  the  Rule 325-329 

204.  Rule  against  Perpetuities  in  the  United  States 330 

205.  Rule  against  Accumulations 330-331 


CHAPTER  Xn. 

ESTATES   AS   TO  NUMBER   OF   OWNERS— JOINT   ESTATES. 

200.    Estates  as  to  Number  of  Owners 332 

207.  Joint  Estates 332 

208.  Joint  Tenancies  333-S35 

209.  Tenancies  in  Common 335-336 

210.  Estates  In  Co-parcenary 336-337 

211-212.  Estates  in  Entirety 337^39 

213.  Estates  In  Partnership 339-340 

214.  Incidents  of  Joint  Estates 340-344 

215-216.    Partition   344r-347 

CHAPTER  Xni. 

INCORPOREAL  HEREDITAMENTS. 

217.  Definition  and  Kinds 348-349 

218.  Easements    349-350 

219.  Oi-eation 350 

220.  By  Gi-ant 350-352 

221.  By  Prescription 352-354 

222.  Classification    354-355 


TABLE    OP   CONTENTS.  Xlll 

Section  Page 

223.  Incidents    355-357 

224.  Destruction    357-358 

225.  Specific  Easements   359 

226.  Riglits  of  Way 359-361 

227.  Highways    361-363 

228.  Light  and  Air 363-364 

229-230.  Lateral  and  Subjacent  Support 365-366 

231.  Party  Walls   366-368 

232.  Easements  in  Water 368-373 

233.  Profits  a.  Prendre 373-375 

234-235.    Rents    375-378 

236.    B^anchises   37S-380 


CHAPTER  XIV. 


237. 

238. 
239-240. 
241-242. 
243^244. 

245. 


LEGAL  CAPACITY  TO  HOLD  AND  CONVEY  REALTY. 

Pei'sonal  Capacity  381 

Infants    38:i-3S3 

Persons  of  Unsound  Mind 383-385 

Married  Women 385-387 

Aliens    387-388 

Corporations 389 


CHAPTER  XV. 

RESTRAINTS  ON  AJjIENATION. 

246.  Kinds  of  Restraints 390 

247.  Restraints  Imposed  by  Law 390-392 

248.  Restraints  in  Favor  of  Creditors 392-394 

249.  Restraints  Imposed  in  Creation  of  Estate 394r-397 


250. 
251. 

252. 
253. 
254. 


CHAPTER  XVI. 

TITLE. 

Title  Defined  399 

Acquisition  of  Title  by  State 399-401 

Acquisition  by  Private  Persons 401 

Grant  from  the  State 401-404 

Conveyances    405 


Xiv  TABLE    OF    CONTENTS. 

^.    .1  Pago 

255.  Gommon-Law  Conveyances 405-409 

250.  Conveyances  under  the  Statute  of  Uses 409-411 

257.  Modern  Statutory  Conveyances 411^12 

258.  Registered  Titles  412-414 

J.MK^OO.  Requisites  of  Deeds 414-415 

2G1.  I'TOperty  to  be  Conveyed 415 

2G2.  Words  of  Conveyance 41G-419 

2(>3-2G4-  Description  of  the  Property 419-426 

205.  E.xecutlon  of  the  Writing 426-432 

266.  Delivery  and  Acceptance 433-436 

267.  Acknowledgment    436-438 

208.  Witnesses    439 

269.  Registry  439-440 

270.  Covenants  for  Title 440-442 

271.  Covenant  of   Seisin 442 

272.  When   Broken 442 

273.  How   Broken 442^44 

274.  Covenant  against  Incumbrances 444 

275.  How   Broken 444-446 

276.  Covenant  of  Warranty 446 

277.  How  Broken   446 

278.  Special  Warranty 446-449 

279.  Covenant  for  Further  Assurance 449-450 

280.  Estoppel    450-456 

281.  Adverse  Possession  456-470 

2S2.    Accretion    470-472 

283.  Devise   472-478 

284.  Descent    478-486 

285.  Judicial  Process 486 

286.  Conveyances  under  Licenses 480-488 

287.  Conveyances  under  Decrees 488-490 

288-290.  Tax  Titles  490-494 

291.  Eminent   Domain    494-495 

t 


HANDBOOK 


ON    THE 


LAW  OF  REAL  PROPERTY, 


CHAPTER  I. 

WHAT  IS  REAL  PROPERTY. 

1.  Real  and  Personal  Property. 

2.  Real  Property— Land. 

3.  Things  Growing  on  Land. 

4.  Fixtures. 

6.  What  Fixtures  Removable. 

6.  Time  of  Removal. 

7.  Equitable  Conversion. 

8.  Personal  Interests  In  Land. 

REAL  AND  PERSONAL  PROPERTY. 

1.  Property  means  things  owned,  and  is  divided  into : 

(a)  Real  property,  and 

(b)  Personal  property. 

Real  and  Personal  Actions, 

For  our  present  purposes,  property  Is  divided  into  two  classes,— 
real  property  and  personal  property.^  The  terms  come  from  the  old 
division  of  the  actions  given  a  man  deprived  of  his  property  iuto 
real  actions  and  personal  actions.  All  things  which  could  be  re- 
covered in  real  actions  were  real  property,  and  all  other  property 

1  This  division,  and  similar  ones  in  other  systems  of  law,  is  historical,  and 
not  philosophical.    See  Maine  Anc.  Law  (3d  Am.  Ed,)  p.  206. 

BEAL  PROP. — 1 


2  WHAT    IS    REAL    PROPERTY.  (Ch.    1 

was  personal.'  In  real  actions  there  was  an  actual  recovery  of  the 
land  itself,  but  in  personal  actions  there  could  be  no  recovery  of  the 
real  thing,  except  in  the  action  of  replevin.  The  person  detaining  it 
could  not  be  compelled  to  deliver  the  identical  thing,  but  might  elect 
to  pay  damages.^  The  action  was  accordingly  in  personam  to  obtain 
damages,  and  the  property  involved  was  called  ''personal  prop- 
erty." 
Importance  of  Distinction  letween  Heal  (md  Personal  Property. 

The  principal  differences  between  real  and  personal  property  are 
as  follows:  On  the  death  of  the  owner,  realty  passes  at  once  to 
the  heir  or  devisee,*  while  personalty  goes  to  the  personal  rep- 
resentative, and  through  him  to  the  distributee  or  legatee.'  The 
personal  property  of  a  decedent  is  to  be  Ui^ed  in  paying  his  debts 
before  his  realty.**  The  modes  of  transferring  real  and  personal 
property  are  different.  The  ownership  of  realty  is  now  transferred 
by  means  of  a  written  instrument,  executed  with  certain  prescribed 
formalities,^  while  personalty  passes  generally  by  sale  and  de- 
livery, without  more.«  So,  also,  there  are  different  requirements 
as  to  the  form  and  recording  of  mortgages  affecting  them.^  Then, 
again,  a  transfer  of  real  property  is  governed  by  the  law  of  the 
place  where  the  land  is  situated,^**  but  of  personal  property  by  the 
law  of  the  domicile  of  the  owner."  There  are  differences  in  form 
and  place  of  bringing  action  for  damages  to  lands  and  to  chattels." 

«  Co.  Lltt.  121a,  Butler  &  H.  note  1;  Bouv.  Law  Diet  tit.  "Real  Property." 
It  has  been  suggested  that  the  term  "mixed"  be  added  to  cover  those  things 
which  may  be  real  or  personal  according  to  circumstances.  Kelke,  Real 
Prop.  4. 

8  Dig.  Real  Prop.  (4th  Ed.)  71,  note  2. 

*  1  Woemer,  Adm'n,  pp.  15,  408. 

B  1  Woemer,  Adm'n,  p.  409. 

«  2  Woemer,  Adm'n,  p.  1093. 

T  Post,  p.  308. 

«  Tiff.  Sales,  p.  83. 

e  Stini.  Am.  St.  Law,  arts.  185-194,  453;  post,  p.  218;  1  Schouler,  Pers. 
Prop.  (2d  Ed.)  c.  6. 

10  Post,  p.  474. 

11  Story,  J.,  in  Black  v.  Zacharie,  8  How.  (U.  S.)  483,  614;  Woemer,  Adm'n, 
p.  131. 

12  1  Jag.  Torts,  p.  102  et  seq. 


§    2)  REAL    PROPERTY LAND.  3 

There  is  also  a  difference  as  to  taxation  of  the  two  kinds  of  prop- 
erty.^' 
Lands^  Tenements^  and  Hereditaments. 

At  an  early  period  in  legal  history  the  two  classes  of  property 
were  distinguished  as  "lands,  tenements,  and  hereditaments,"  and 
"goods  and  chattels.""  A  tenement  is  axiything  which  can  be 
holden;  that  is,  anything  subject  to  tenure."  Hereditaments  are 
things  which  can  be  inherited;  that  is,  which,  on  the  death  of  the 
owner  intestate,  descend  to  the  heir.  Personal  as  well  as  real 
property  may  be  a  hereditament;  for  instance,  heirlooms,  which, 
though  personal  property,  descend  with  the  inheritance."  Thus 
"tenement"  is  a  broader  term  than  "land,"  and  "hereditament" 
broader  than  "tenement."  The  division  of  things  into  movables 
and  immovables  by  the  civil  law  is  not  the  same  as  the  common 
law  division  of  things  into  personalty  and  realty.^' 

REAL  PROPERTY— LAND. 

2.  Ijand,  meaning  tlie   soil  and  minerals  of  tlie   earth,  is 
real  property,  except: 
EXCEPTION— Parts  of  the  land  actually  severed  with 
intent  to  make  them  personalty  (p.  7). 

Land. 

The  word  "land"  is  often  used  as  practically  synonymous  with 
"realty,"  and  as  such  it  includes  not  only  the  soil,  but  everything 
attached  to  it  or  growing  or  imbedded  in  it,"  extending  upward 

18  Cooley,  Tax'n,  pp.  270,  275;  Stim.  Am.  St.  Law,  arts  33,  35, 

1*  2  Bl.  Comm.  16. 

IB  2  BL  Comm.  16;  Potter,  J.,  in  Canfield  v.  Ford,  28  Barb,  (N.  Y.)  336; 
Hosmer,  C.  J.,  in  Mitchell  v.  Warner,  5  Conn.  518.     See  post,  p.  26. 

leld. 

IT  Strong  V.  White,  19  Conn.  238;  Dickey,  J.,  in  Ohio  &  M.  R.  Co.  v.  Weber, 
96  111.  448;  Penniman  v.  French,  17  Pick.  (Mass.)  404.  But  see  2  Bl. 
Comm.    15, 

18  2  Bl,  Comm,  17;  Barnett  v,  Johnson,  15  N,  J.  Eq.  481;  Field  v.  Barling, 
149  111,  556,  37  N.  E.  850;  Ruggles,  J.,  in  Mott  y.  Palmer,  1  N.  Y.  504,  569; 
Isham  V.  Morgan,  9  Conn.  374.  Cf.  In  re  Department  of  Public  Parks,  60 
Hun,  576,  14  N.  Y.  Supp.  347. 


4  WHAT    IS    REAL    PROPERTY.  (Ch.    1 

Indefinitply  and  downward  to  the  center  of  the  earth,  as  is  ex- 
prt'ssed  by  the  phrase  "Cujiis  est  solum  ejus  est  usque  ad  coelum 
us(|Uo  ad  ortuni."  *®  Therefore  an  owner  of  hind  may  cut  off  the 
limbs  of  trees  which  hang  over  his  boundary  line  without  com- 
mitting  a  tort.*"  An  exception  to  the  rule  is  seen  in  the  case  of 
the  ownership  of  realty  by  horizontal  divisions,  so  that  one  per- 
son may  own  the  surface  and  another  have  the  right  to  the  min- 
erals which  are  under  the  surface.^^  In  a  more  limited  sense, 
land  means  the  soil  of  the  earth,  the  water  upon  it,  and  the  min- 
erals, fossils,  etc.,  imbedded  in  it.^^  Those  things,  like  buildings, 
vvhich  are  generally  included  in  the  meaning  of  the  term  "land," 
will  be  discussed  separately. 

Wafer. 

Running  waters  are  not  owned  by  those  who  own  the  land  over 
which  they  flow.  These  riparian  owners,  as  they  are  called,  have 
only  an  easement  in  such  waters.  These  rights  in  water  are  treated 
as  real  property.^ ^  But  standing  water  and  percolations  beneath 
the  surface  belong  to  the  owner  of  the  soil.^*     In  any  case  a  man 

18  Slosson,  J.,  In  Sherry  v.  Frecking,  4  Duer  (N.  Y.)  452,  457;  Welles,  J., 
In  Aiken  v.  Benedict,  39  Barb.  (N.  Y.)  401. 

«o  Grandona  v.  Lovdal,  70  Cal.  161,  11  Pac.  623;  Smith,  J.,  In  Countiyman 
-V.  Liyhtbill,  24  Hun,  4UG.  But  he  has  no  right  to  the  iruit  on  trees  overhang- 
ing his  land.  Skinner  v.  Wilder,  38  Vt  115;  Lyman  v.  Hale,  11  Conn.  177. 
When  a  tree  standing  on  one  man's  land  sends  roots  Into  the  soil  of  an  ad- 
joining proprietor,  the  one  on  whose  land  the  trunk  stands  owns  all  the  tree 
and  it."5  fruit.  Masters  v.  Pollie,  2  Rolle,  141;  Holder  v.  Coates,  1  Moody  & 
M.  112;  I.yman  v.  Hale,  11  Conn.  177;  Hoffman  v.  Armstrong,  48  N.  Y.  201; 
Skinner  v.  Wilder,  38  Vt  115.  But,  as  holding  that  they  are  tenants  In  com- 
mon, see  Waterman  v.  Soper,  1  Ld.  Raym.  737.  They  are  tenants  In  com- 
mon when  the  tree  stands  on  the  line  Griffin  v.  Bixby.  12  N.  H.  454;  Dubois 
y.  Beaver,  25  N.  Y.  123. 

21  Lillibridge  v.  Coal  Co.,  143  Pa.  St.  293,  22  Atl.  1035;  Delaware,  L.  &  W. 
R.  Co.  V.  Sanderson,  109  Pa.  St.  583,  1  Atl.  394;  Lee  v.  Bumgardner,  SG  Va. 
81.5.  10  S.  E.  3. 

«2  2  Bl.  Comm.  17;  Smith,  C.  J.,  in  Johnson  v.  Richardson,  33  Miss.  402, 
464;  Ray,  C.  J.,  in  State  v.  Pottmeyer,  33  lud.  402,  403;  Williamson  v.  Jones, 
39  W.  Va.  231,  19  S.  E.  436. 

as  See  post,  p.  368. 

14  Ocean  Grove  v.  Asbury  Park,  40  N.  J.  Eq.  447,  8  Atl.  168;  Village  of 
Brooklyn  v.  Smith,  104  111.  429;   AJexander  v.  U.  S.,  25  Ut  CI.  87;    Hills  v. 


c    2)  BEAIi   PROPERTY LAND.  ^ 

has  the  exclusiye  right  to  sail,  fish,  etc.,  in  water  overlying  his 
land.=">  But  there  are  no  such  exclusive  rights  in  connection  with 
navigable  waters,"  because  the  title  to  the  soil  under  them  is  in 
the  s1:ate."  This  is,  however,  denied  by  some  cases,  which  hold  the 
title  to  the  bed  of  a  navigable  river  to  be  in  the  riparian  pro- 
prietor. =^«     Navigable  rivers  are  those  which  are  navigable  in  fact.^» 

Bishop,  63  Hun.  624,  17  N.  Y.  Supp.  297;  Walker  v.  Board.  16  Ohio.  540;  Peo- 
ple V.  Piatt,  17  Johns.  195.  ^   „   ^. 

25  Shrunk  y.  Navigation  Co.,  14  Serg.  &  R.  70;  Reece  v.  MiUer.  8  Q.  B.  Div. 
626;  Waters  v.  Lilley.  4  Pick.  145;  McFarlin  v.  Essex  Co.,  10  Cush.  304; 
Com.  V.  Chapin,  5  Pick.  199;  Cobb  v.  Davenport,  32  N.  J.  Law.  369;  Heck- 
man  V.  Swett,  107  Cal.  276,  40  Pac.  420. 

26  Carson  v.  Blazer.  2  Bin.  475;  Arnold  v.  Mundy.  6  N.  J.  Law.  1;  Martm  v. 
Waddell  16  Pet.  367;  McCready  v.  Virginia,  94  XJ.  S  391.  Weston  v.  Sampson. 
8  Cush  347;  Chalker  v.  Dickinson.  1  Conn.  382;  Attorney  General  v.  Cham 
bers  4  De  Gex,  M.  &  G.  206;  Sollers  v.  SoUers  (Md.)  26  Atl.  188.  And  see 
Ba-ott  V  Orr,  2  Bos.  &  P.  472;  Packard  v  Ryder,  144  Mass.  440,  11  N.  E. 
578^!  But  cf.  Anon..  1  Camp.  517.  note;  Blundell  v.  Catterall,  5  Barn.  &  Aid. 
268;  Fleet  V.  Hegeman,  14  Wend.  42.  ,,„  tt   o 

.T  Pacific  Gas  Imp.  Co.  v.  Ellert.  64  Fed.  421;  Shively  v.  Bowlby.  152  U.  S. 
1  14  Sup.  Ct  548;  Bai-ney  v.  Keokuk,  94  U.  S.  324;  Poor  v.  McCiure,  77  Pa. 
St  214-  Flannagan  v.  Philadelphia.  42  Pa.  St.  219;  McManus  v.  Carmichael, 
8  Iowa  l;  TomUn  v.  Railway  Co..  32  Iowa,  106;  Cooley  v.  Golden.  11.  xAlo. 
33  23  S  W.  100;  Smith  v.  Levinus.  8  N.  Y.  472;  People  v.  Appraisers,  33  N.  Y. 
461-  Rumsey  v.  Railway  Co.,  130  N.  Y.  88.  28  N.  E.  763;  Saunders  v.  Rail- 
way Co  144  N.  Y.  75,  38  N.  E.  992;  State  v.  Pacific  Guano  Co.,  22  S.  O.  50; 
Bullock 'y  Wilson.  2  Port.  436;  Goodwin  v.  Thompson.  83  Tenn.  209;  Con- 
cord Manuf  g  Co.  v.  Robertson,  66  N.  H.  1.  25  Atl.  718;  Illinois  Cent  R.  Co. 
V  Illinois  146  U.  S.  387.  13  Sup.  Ct.  110;  Wainwright  v.  McCuUough,  63  Pa. 
St  66  But  cf.  Wilscn  v.  Welch,  12  Or.  353,  7  Pac.  341;  Coxe  v.  State.  144 
N  Y  396  39  N.  E.  400.  That  the  title  to  the  bed  of  such  sti-eams  is  not  In  the 
United  sktes.  see  Pollard  v.  Hagan.  3  How.  212.  A  riparian  proprietor  on  a 
nonnavigable  river  owns  the  bed  of  the  stream  to  the  center.  Ingraham  v. 
Wilkinson.  4  Pick.  (Mass.)  268;   Wiggenhorn  v.  Kountz,  23  Neb.  690,  37  N.  W. 

28*  Norcross  v.  Griffiths.  65  Wis.  599.  27  N.  W.  606;  Olson  v.  Merrill,  42  Wis. 
203;  Ensminger  v.  People.  47  IlL  384;  Middleton  v.  Pritchard.  4  111.  510; 
Houck  v.  Yates,  82  111.  179;  Trustees  of  Schools  v.  Schroh.  120  111.  509,  12  N. 
E  243-  Gavlt  v.  Chambers.  3  Ohio.  496;  Blanchard  v.  Porter.  11  Ohio,  139; 
Commi'ssioners  of  Canal  Fund  y.  Kempshall.  26  Wend.  (N.  Y.)  404;   Berry  v. 

i»  See  note  29  on  following  page. 


6  WHAT   IS    REAL    PROPERTY.  (Ch.   1 

Tlie  English  rule  that  only  fiose  in  which  the  tide  ebbs  and  flows 
are  navigable  does  not  apply  in  this  country." 

Ice. 

Ice  belongs  to  the  owner  of  the  land  over  which  it  is  formed,'^ 
but  ice  formed  on  public  waters  belongs  to  the  one  first  appropri- 
ating it." 

Snyder,  3  Busb  (Ky.)  2G6;  Brown  t.  Chadboume,  31  Me.  9;  Keyport,  etc.. 
Steamboat  Co.  v.  Farmers'  Transp.  Co.,  18  N.  J.  Eq.  13;  Morgan  v.  Reading, 
8  Smedes  &  M.  (Miss.)  366;  Steamboat  Magnolia  v.  Marsliall,  39  Miss.  109; 
Gates  v.  Wadlington,  1  McCord  (S.  C.)  580;  Mathls  v.  Board  of  Assessors,  46 
La.  Ann.  1570,  16  South.  454;  Gibson  v.  Kelly  (Mont.)  39  Pac.  517.  Cf.  But- 
tonutli  V.  Bridge  Co.,  123  111.  535,  17  N.  E.  439;  Kyan  v.  Brown,  18  Mich.  196; 
State  V.  Black  River  Phosphate  Co.,  32  Fla.  82,  13  South.  640;  Wood  v.  Town 
of  Edeuton,  115  N.  C.  10,  20  S.  E.  165. 

2»  Weise  v.  Smith,  3  Or.  445;  Rhodes  v.  Otis,  33  Ala.  578;  McManus  v. 
Carmichael,  8  Iowa,  1;  Morgan  v.  King,  35  N.  Y.  454;  Spring  v.  Russell,  7 
Greenl.  (Me.)  273;  American  River  Water  Co.  v.  Amsden,  6  CaL  443;  Jones 
V.  Johnson  (Tex.  Civ.  App.)  25  S.  W.  650;  Commissioners  of  Homochitto 
River  V.  Withers,  29  Miss.  21;  Bayzer  v.  Mill  Go.  (Ala.)  16  South.  923;  The 
Daniel  Bell,  10  Wall.  557;  The  Montello,  20  Wall.  430;  Chisolm  v.  Gaines, 
67  Fed.  2S5;  Stover  v.  Jack,  60  Pa.  St.  339;  Hey  ward  v.  Mining  Co.,  42  S.  G. 
138,  19  S.  E.  963,  and  20  S.  E.  64;  Falls  Jlanufg  Co.  v.  Oconto  River  Imp.  Co., 
87  Wis.  134,  58  N.  W.  257.  And  see  Volk  v.  Eldred,  23  Wis.  410;  Lewis  v. 
Coffee  Co.,  77  Ala.  190;  Rowe  v.  Bridge  Corp.,  21  Pick.  344;  State  v.  Gilman- 
ton,  14  N.  H.  407;  People  v.  Elk  River  Mill  &  Lumber  Co.  (Cal.)  40  Pac.  431; 
State  V.  Eason,  114  N.  C.  787,  19  S.  E.  88.  That  the  stream  must  be  navigable 
In  its  natural  state,  see  Jeremy  v.  Elwell,  5  Ohio  Cir.  Ct.  R.  879;  Ten  Eyck  v. 
Town  of  Warwick,  75  Hun,  562,  27  N.  Y.  Supp.  536. 

8  0  Black,  Const.  I>a\v,  124;  Weise  v.  Smith,  3  Or.  445;  Wilson  v.  Forbes,  2 
Dev.  (N.  C.)  30;  The  Daniel  Bell,  10  Wall.  557.  Cf.  Veazie  v.  Dwinel,  50  Me. 
479;  City  of  Chicago  v.  McGinn,  51  111.  266;  People  v.  TIbbetts,  19  N.  Y.  523; 
Glover  v.  Powell,  10  N.  J.  Eq.  211. 

«i  State  V.  Pottmeyer,  33  Ind.  402;  Washington  Ice  Co.  v.  Shortall,  101  111. 
46;  Brookville  &  Metamora  Hydraulic  Co.  v.  Butler,  91  Ind.  134;  Stevens  v. 
KeUey,  78  Me.  445,  6  Atl.  868;  Village  of  Brooklyn  v.  Smith,  104  lU.  429.  And 
see  Lorman  v.  Benson,  8  Mich.  18;  People's  Ice  Go.  v.  The  Excelsior,  44  Mich. 
229,  6  N.  W.  636;  Howe  v.  Andrews,  62  Conn.  398,  26  Atl.  394. 

82  Wood  v.  Fowler,  26  Kan.  682;  Inhabitants  of  West  Roxbury  v.  Stoddard, 

7  Allen.  158;  Biastow  v.  Ice  Co.,  77  Me.  100;  Woodman  v.  Pitman,  79  Me.  456, 10 
Atl.  321;  Barrett  v.  Ice  Co.,  84  Me.  155,  24  Atl.  802.  But  cf.  McFadden  v.  Ice 
Co.,  86  Me.  319,  29  Atl.  1068. 


§   3)  THINGS   GBOWINQ   ON    LAND.  7 

Minerals^  JFossils^  etc. 

Unmined  minerals,  metals,  and  fossils  are  realty,  and  belong  to 
the  owner  of  the  land  as  a  part  thereof,^'  as  does  also  an  aerolite 
which  falls  on  the  land.'*  In  England  the  right  to  gold  and  silver 
mines  is  in  the  crown,''  But  the  rule  does  not  apply  here.  The 
United  States  and  the  states  own  mines  as  they  own  other  property, 
— that  is,  the  same  as  private  individuals, — and  not  by  reason  of  sov- 
ereignty,*' 

Exceptions — Things  Severed  from  tJie  Lrnid. 

Any  of  the  things  which  have  been  enumerated  as  part  of  the 
land,  and  therefore  realty,  may  become  personalty  by  being  sev- 
ered from  the  land.'^     This  is  true  of  portions  of  the  soil  itself." 

SAME— THINGS  GROWING  ON  LAND. 

3.  BverythirLg  gro"wring  on  land  is  real  property,  except: 
EXCEPTION'S — (a)  Things  constructively  severed. 
(b)  Annual  crops. 

Things  Or  owing  on  Land — Annual  Crops — Trees. 

Everything  growing  upon  land,  except  annual  crops  '•  is  realty  ** 
until  it  is  made  personalty  by  being  severed.*^      The  severance, 

88  Appeal  of  Stoughton,  88  Pa.  St.  198;  Dunham  v.  Klrkpatrlck,  101  Pa.  St. 
36;  HartweU  v.  Camman,  10  N.  J.  Eq.  128. 
8*  Goddard  v.  Winchell,  86  Iowa,  71,  52  N.  W;  1124. 

86  If  the  gold  or  silver  was  found  together  with  baser  metals,  they  all  be- 
longed to  the  king  if  the  value  of  the  precious  metals  was  greater  than  the 
value  of  the  others.  But  If  the  baser  metals  were  more  valuable  than  the 
gold  or  silver,  then  the  owner  of  the  soil  took  both.  Case  of  Mines,  Plowd. 
810;  3  Kent,  Comm.  378,  note;  1  Bl.  Comm.  294. 

8«  Boogs  V.  Mining  Co.,  14  Cal.  279;  Moore  v.  Smaw,  17  Cal.  199;  1  Cooley, 
Bl,  Comm.  294,  note  4. 

87  Lykens  Valley  Coal  Co.  v.  Dock,  62  Pa.  St.  232;  Higgins  v.  Kusterer,  41 
Mich,  318,  2  N.  W.  13;  In  re  Clever's  Estate,  23  Pittsb,  Leg.  J.  (N.  S.)  358; 
Kier  v,  Peterson,  41  Pa.  St.  357. 

88  See  Lacustrine  Fertilizer  Co.  v.  Lake  Guano  &  Fertilizer  Co.,  82  N.  Y.  476; 
Riley  v.  Water  Power  Co.,  11  Cush.  11. 

88  Which  are  personalty.  Robinson  v.  Ezzell,  72  N.  C.  231;  Crine  v.  Tifts, 
65  Ga,  644;   Bloom  v.  Welsh,  27  N,  J,  Law,  177;   Pickens  v,  Webster,  31  La, 

*o  See  note  40  on  following  page,  *!  See  note  41  on  following  page. 


8  WHAT   IS    REAL   PROPERTY.  (Ch.   1 

however,  need  not  be  an  actual  physical  act,  but  may  be  construct- 
ive.*' For  instance,  trees  and  the  like  can  be  made  personal  prop- 
erty by  conveying  the  land  and  reserving  the  trees,  or  by  the  own- 
er selling  the  trees  as  they  stand  on  the  land.*' 

Same — Emblements. 

The  term  "emblements"  denotes  such  annual  products  of  the 
land  as  have  resulted  from  a  tenant's  own  care  and  labor,  and 
which  he  is  entitled  to  take  away  after  his  tenancy  has  ended.** 
Annual  crops  are  all  "vegetable  products  of  the  earth,  as  corn, 
etc.,**  which  are  produced  annually  *"  by  labor,  industry,  and  man- 
Ann.  870;  Brlttaln  v.  McKay,  1  Ired.  (N.  C.)  265;  Polley  v.  Johnson,  52  Kau. 
478,  35  Pac.  8;  Mabry  v.  Harp,  53  Kan.  308,  36  Pac.  743.  See,  also,  Winter- 
mute  V.  Light,  46  Barb.  278;  Miller  v.  Baker,  1  Mete.  (Mass.)  27;  Butterman  v. 
Albright,  122  X.  Y.  484,  25  N.  E.  856.  But  they  pass  with  a  conveyance  of  the 
land.  Backenstoss  v.  Stabler,  33  Pa.  St.  251;  Coman  v.  Thompson,  47  Mich. 
22.  10  N.  W.  62;  Powell  v.  Rich,  41  111.  466;  Smith  v.  Price,  39  111.  28;  Ter- 
hune  V.  Elberson,  3  N.  J.  Law,  533;  Tripp  v.  Hasceig,  20  Mich.  254.  As  to 
matured  crops  see  2  Jones,  Real  Prop.  §  1621.  And  go  to  a  devisee.  Dennett 
V.  Hopkinson,  63  Me.  350;  Bradner  v.  Faulkner,  34  N.  Y.  347;  Mr.  Spencer's 
Case,  Winch.  51;  Cooper  v.  Woolfitt,  2  Hurl.  &  N.  122.  As  to  what  are  annual 
crops,  see  Latham  v.  Atwood,  Cro.  Car.  515. 

*'j  Maples  v.  Millon,  31  Conn.  598;  Batterman  v.  Albright,  122  N.  Y.  484, 
L*5  N.  E.  856;  Adams  v.  Beadle,  47  Iowa,  439;  Wescott  v.  Delano,  20  Wis. 
514;    Cockrill  v.  Downey,  4  Kan.  426;    Brackett  v.  Goddard,  54  Me.  309. 

*i  State  T.  Moore,  11  Ired.  (N.  C.)  70.  Cf.  State  v.  Stephenson,  2  Bailey 
(S.  C.)  334.     But  see  In  re  Mulholland's  Estate,  154  Pa.  St  491,  26  Atl.  612. 

*3  As  when  owned  by  one  who  does  not  own  the  land.  Jencks  v.  Smith, 
1  N.  Y.  90;  Dayton  v.  Vandoozer,  89  Mich.  749;  Warren  v.  Leland,  2  Barb. 
613. 

*8  Yale  V.  Seely,  15  Vt.  221;  Klngsley  v.  Holbrook,  45  N.  H.  313.  But  cf. 
Brackett  v.  Goddard,  54  Me.  809.  As  to  the  requirements  of  the  statute  of 
frauda  In  relation  to  the  sale  of  growing  trees,  see  Clark,  Cont.  p.  106;  Green 
V.  Armstrong,  1  Denio,  550;  Whitmarsh  v.  Walker,  1  Mete.  (Mass.)  313; 
Harris  v.  Frink,  49  N.  Y.  24. 

«*  Black,  Law  Diet,  "Emblements." 

♦BTliis  includes  grain.  Peacock  v.  Purvis,  2  Brod.  &  B.  862;  Cooper  v. 
Woolfitt,  2  Hurl.  &  N.  122;  Forsythe  v.  Price,  8  Watts,  282.  And  the  straw. 
Craig  V.  Dale,  1  Watts  &  S.  509.  Hemp.  Co.  Litt.  55a.  Hops.  Latham  v. 
Atwood,  Cro.  Car.  515.     Clover  and  artificial  gi-asses.     Graves  v.  Weld,  5 


«8  As  to  teasels,  see  Graves  v.  Weld,  5  Barn.  &  Adol.  105;    Kingsbury  v. 
Collins,  4  Bing.  202. 


§    3)  THINGS  GROWING   ON    LAND.  9 

urance,  and  are  called  'fnictus  industriales,' "  as  distinjjruislied  from 
those  spontaneous  or  natural  products  which  are  called  "fructus 
naturales."  Whenever  such  crops  are  planted  "  by  one  having 
an  interest  of  uncertain  duration  in  the  land,  and  that  interest 
terminates  without  his  fault  before  the  crops  are  harvested,** 
there  is  a  right  to  enter  to  cultivate,  harvest,  and  remove  them.*' 
This  right  is  given  on  the  principle  that  the  crops  are  not  planted 
with  any  intention  to  benefit  the  one  next  entitled  to  the  land,  but 
with  the  expectation  of  reaping  them.  No  one  is  entitled  to  em- 
blements who  has  terminated  his  estate  by  his  own  act."^"     The 

Bam.  &  Adol.  105.  Contra,  Relfe  v.  Reiff,  64  Pa.  St.  134;  Evans  v.  Iglehart, 
6  Gill  &  J.  171.  But  not  growing  grasses.  Reiff  v.  Reiff,  64  Pa.  St.  134. 
Nor  young  trees.  Co.  Litt  55a.  But  turpentine  "scrape"  may  be.  Lewis 
V.  McNatt,  65  N.  C.  63.  And  nursery  stocit.  Broolss  v.  Galster,  51  Barb. 
196;  King  v.  Howland,  7  Barb.  263.  See,  also,  Brackett  v.  Goddard,  54  Me. 
309. 

*7  The  seed  must  be  sown.  Mere  preparation  of  the  ground  is  not  suffi- 
cient.   Price  V.  Picliett,  21  Ala.  741. 

*8  Harris  v.  Frinli,  49  N.  Y.  24.  Therefore  a  tenant  from  year  to  year  is 
entitled  to  emblements.  Clark  v.  Harvey,  54  Pa.  St.  142,  Reeder  v.  Say  re,  70 
N.  Y.  180.  A  tenant  at  will.  Davis  v.  Brocklebank,  9  N.  H.  73;  Davis  v. 
Thompson,  18  Me.  209;  Towne  v.  Bowers,  81  Mo.  491;  Pfanner  v.  Sturmer,  40 
How.  Prac.  401;  Sherburne  v.  Jones,  20  Me.  70.  And  a  tenant  for  life.  Poln- 
dexter  v.  Blackburn,  1  Ired.  Eq.  286;  Perry  v.  Terrel,  1  Dev.  &  B.  Eq.  441; 
Hunt  V.  Watkins,  1  Humph.  497;  Thornton  v.  Burch,  20  Ga,  791;  Bradley 
V.  Bailey,  56  Conn.  374,  15  Atl.  746.  And  his  lessees.  Bevans  v.  Briscoe,  4 
Har.  &  J.  (Md.)  139.  But,  when  the  interest  is  of  definite  duration,  there  is 
no  right  to  emblements;  for  instance,  under  a  tenancy  for  years.  Whitmarsh 
v.  Cutting,  10  Johns.  360;  Sanders  v.  Ellington,  77  N.  C.  255;  Dircks  v.  Brant, 
56  Md.  500;  Hendrixson  v.  Card  well,  68  Tenn.  389;  Gossett  v.  Dry  dale,  48 
Mo.  App.  430.  But  a  custom  to  the  contrary  will  give  the  right.  Stultz  v. 
Dickey,  5  Bin.  (Pa.)  285;  Biggs  v.  Brown,  2  Serg.  &  R.  14;  Templeman  v.  Biddle,^ 
1  Har.  (Del.)  522;  "Van  Doren  v.  Everitt,  5  N.  J.  Law,  460;  Foster  v.  Robin- 
son, 6  Ohio  St.  90;  Clark  v.  Banks,  6  Houst.  584.  Contra,  Harris  v.  Carson, 
7  Leigh,  632. 

*9  Den  V.  Humphries,  3  Ired.  (N.  C.)  362. 

»o  Debow  V.  Colfax,  10  N.  J.  Law,  128;  Samson  v.  Rose,  65  N.  Y.  411;  Haw- 
kins V.  Skeggs,  10  Humph.  (Tenn.)  30;  Gregg  v.  Boyd,  69  Hun,  588,  23  N.  Y. 
Supp.  918;  Carney  v.  Mosher,  97  Mich.  554,  56  N.  W.  935;  Orland's  Case,  & 
Coke,  116a;  Davis  v.  Eyton,  7  Bing.  154.  Cf.  Carpenter  v.  Jones,  63  111.  517. 
Bo  the  right  Is  lost  by  the  assertion  of  a  title  paramount.  Howell  v. 
Schenck,  24  N,  J.  Law,  89;   King  v.  Fowler,  14  Pick.  238.    As  by  foreclosure 


10  WHAT    IS    REAL   PROPERTY.  (Ch.    1 

rip:lit  to  remove  crops  may  be  given  in  any  case  by  express  con- 
tract.**    In  some  states  the  subject  is  regulated  by  statute." 

SAME— FIXTURES. 

4.  Chattels    •which    are    annexed    to    land    are    called  fix- 
tures.    Fixtures  are  either: 

(a)  Real  fixtures,  or  those  -which  cannot  be  la-wfully  re- 

moved by  the  o^wner   of  a  limited   interest  in   the 
land.     Real  fijxtures  are  real  property. 

(b)  Chattel  fixtures,  or  those  -which  can  be  la^rfully  re- 

moved by  such  an  o-wner.     Chattel  fixtures  are  per- 
sonal property. 

Buildings  erected  upon  land  and  chattels  annexed  to  land  or 
to  buildings  on  the  land  are  called  "fixtures."  "*'  When  the  an- 
nexation is  made  by  the  owner  in  fee  of  the  land,  such  fixtures  be- 
come real  property."*  They  may,  of  course,  again  become  per- 
sonalty by  being  actually  severed  from  the  land  with  that  intent." 
But,  where  the  annexation  is  made  by  the  tenant  of  a  less  estate 
than  a  fee,  it  is  not  always  easy  to  determine  whether  such 
fixtures  become  realty  or  remain  personalty.  Things  annexed  by 
a  tenant  sometimes  become  realty,  and  sometimes  do  not.  The 
question  is  of  importance,  because,  if  the  chattels  become  realty, 
they  cannot  be  lawfully  severed  or  removed  by  the  tenant,  while 
if  they  remain  personalty,  notwithstanding  their  annexation,  they 
may  be  removed  by  the  tenant  before  or  at  the  expiration  of  his 
term.     There  is  great  conflict  in  the  cases.      The  confusion  has 

of  a  mortgage  executed  before  the  lease.  Lane  v.  King,  8  Wend.  584;  Down- 
nrd  v.  Groff,  40  Iowa,  597;  Gilman  v.  Wills,  66  Me.  273.  But  see  Cassilly  v. 
Rhodes,  12  Ohio,  88.    Of.  Lewis  v.  Klotz,  39  La.  Ann.  259,  1  South.  539. 

61  Van  Doren  v.  Everitt,  5  N.  J.  Law,  400. 

B2  1  stim.  Am.  St.  Law,  §§  1334,  2064,  3233. 

68  Toaff  V.  Hewitt,  1  Ohio  St.  511;  Capen  v.  Peckham,  35  Oonn.  88;  Potter 
V.  Cromwell,  40  N.  Y.  287;    Peirce  v.  Goddard,  22  Pick.  559. 

»♦  Harris  v.  Scovel,  85  Mich.  32,  48  N.  W.  173;  Dooley  v.  Crist,  25  111.  551; 
Sampson  v.  Cotton  Mills,  64  Fed.  939.  But  see  Jenkins  v.  McCurdy,  48  Wis. 
€30,  4  N.  W.  807.    And  cf.  Green,  J.,  in  Stevens  v.  Railway  Co.,  31  Barb.  597. 

6  6  Bostwick  V.  Leach,  3  Day  (Conn.)  476;  Lee  v.  Gaskell,  1  Q.  B.  Div.  700. 


§   5)  WHAT   FIXTURES    REMOVABLE.  11 

arisen  largely  from  a  loose  use  of  the  word  "fixtures."  The  term 
has  been  used  in  three  senses:  First,  as  meaning  simply  chattels 
which  are  annexed  to  realty,  irrespective  of  whether  they  may  be 
removed  or  not;  second,  as  meaning  irremovable  fixtures;  and, 
third,  as  meaning  removable  fixtures."  The  resulting  confusion 
of  the  cases  is  natural.  It  is  hoped  to  avoid  this  confusion  by 
calling  those  fixtures  which  cannot  be  lawfully  removed  "real  fix- 
tures," because  they  have  become  realty.  Fixtures  which  can  be 
lawfully  removed  will  be  called  "chattel  fixtures,"  because  they 
remain  personal  property."  They  may  be  taken  on  execution 
against  the  tenant  as  long  as  the  latter's  right  to  remove  them 
exists. ''• 

5.  WHAT  FIXTUHES  KEMOV ABLE— Whether  a  fixture 
is  a  real  or  personal  fixture,  and  lawfully  remov- 
able, depends  on  the  presumed  intention  with  which- 
it  was  annexed.  This  intention  is  determined  with 
reference  to: 

(a)  Express  contract  of  the  parties  (p.  12). 

(b)  Statutory  regulation,  which  conclusively  presumes 

intention  (p.  12). 

(c)  Character  of  the  annexation  (p.  13). 

(d)  Adaptation  of  the   fijsture  for  use  with  the  realty 

(p.  15). 
<e)  Nature  of  the  chattels  annexed,  as : 

(1)  Trade  fixtures  (p.  16). 

(2)  Agricultural  fixtures  (p.  17), 

(3)  Domestic  fixtures  (p.  18). 

(f)  Relation  of  the  party  making  the  annexation  to  the 
land,  as : 

(1)  Lessee  (p.  19). 

(2)  Tenant  for  life  or  in  tail  (p.  19). 

(3)  Owner  in  fee  (p.  19). 

»•  Ewell,  Fixt.  1;    Tyler,  Fixt.  35. 

BT  Voorhees  v.  McGinnis,  48  N.  Y.  27S;  Teaff  v.  Hewitt,  1  Ohio  St.  511. 
B8  O'Donnell  v.  Hitchcock,  118  Mass.  401;  HefEner  Y.  Lewis,  73  Pa.  St.  302; 
Fisher  v.  Saffer,  1  E.  D.  Smith,  611. 


12  WHAT    IS    REAL    PROPERTY.  (Ch.  1 

Intention. 

The  whole  subject  of  fixtures  is  involved  in  difficulty,  and  the 
cases  are  in  preat  conflict.  The  real  or  chattel  character  of  a  fix- 
ture is  largely  a  question  of  fact,  and  few  general  rules  can  be  laid 
down  for  detorniinin{]j  what  fixtures  are  removable.'"  But  the 
tendency  of  modem  cases  is  to  malce  the  intention  with  which  a 
fixture  is  annexed  the  test  of  its  character,'^  and  to  treat  other 
thinfjs  as  evidence  of  that  intention.''  It  is  not,  however,  a  se- 
cret intention  which  controls,  but  the  intention  which  the  law 
presumes  from  the  acts  and  situation  of  the  party  at  the  time- 
of  making  the  annexation." 

Express  Contract. 

The  parties  between  whom  the  question  Is  likely  to  arise  may 
settle  all  doubts  in  advance  by  express  contract.'*  This  is,  of 
course,  an  instance  of  expressed  intention. 

Statutoi'y  Regulation. 

In  some  states  the  question  of  fixtures  has  been  made  a  matter 
of  legislative  enactment,  and  certain  classes  of  annexations  are 

«o  Ewell.  Flxt.  9. 

«i  Farrar  v.  Cliauflfetete,  5  Denio  (N.  Y.)  527;  Reynolds  v.  New  York  Se- 
curity &  Trust  Co.,  88  Hun.  5fi9,  34  N.  Y.  Supp.  890;  Hill  v.  Sewald,  53  Pa, 
St  271;  Seejjer  v.  Pettit,  77  Pa.  St.  437;  Meig's  Appeal,  62  Pa.  St.  28;  Hill 
V.  Wentworth,  28  Vt.  428;  Jones  v.  Ramsey,  3  111.  App.  303;  Kelly  v.  Austin,  46 
111.  156;  Confrrpf^ational  Society  v.  Fleming,  11  Iowa.  533;  Copp  v.  Swift 
(Tex.  Civ.  App.)  26  S.  W.  438;  McDavid  v.  Wood,  5  Heisk.  (Tenn.)  95;  Mc- 
Fadden  v.  Crawford,  36  W.  Va.  671,  15  S.  E.  408;  Strickland  v.  Parker,  54 
Me.  263;  Capon  v.  Peckham,  35  Conn.  88;  Linahau  v.  Barr,  41  Conn.  471; 
Equitable  Trust  Co.  v.  Christ,  47  Fed.  756. 

82  ottumwa  Woolen  Mill  Co.  v.  Hawley,  44  Iowa.  57;  Hutchins  v.  Master- 
son,  46  Tex.  551. 

8  3  Kogers  v.  Brokaw,  25  N.  J.  Eq.  496.    Cf.  Linajan  v.  Barr,  41  Conn.  471. 

««  Hine.q  v.  Ament.  43  Mo.  298;  Tifft  v.  Horton,  53  N.  Y.  377;  Hendy  v. 
DinkerholT,  57  CaL  3;  Mott  v.  Palmer,  1  N.  Y.  564.  See  Ex  parte  Ames,  1 
Low.  561,  Fed.  Cas.  No.  323;  Aldrich  v.  Husband,  131  Mass.  480;  Taft  v. 
Stetson,  117  Mass.  471;  Hunt  v.  Iron  Co.,  97  Mass.  279;  Lake  Superior  Ship 
Canal,  Ry.  &  Iron  Co.  v.  McCann.  86  Mich.  106,  48  N.  W.  692;  Lansing  Iron 
&  Engine  Works  v.  Walker,  91  Mich.  409,  51  N.  W.  1061;  Holly  Manuf'g  Co.  v. 
New  Chester  Water  Co.,  48  Fed.  879;  Id.,  3  C.  C.  A.  399,  53  Fed.  19;  Advance 
Coal  Co.  v.  Miller,  4  Pa.  Dlst.  R.  352;  White's  Appeal,  10  Pa.  St.  252;  Blanch- 
ard  V.  Bowers,  67  Vt.  403,  31  Atl.  848. 


■§  5)  WHAT   FIXTURES   REMOVABLE.  18 

by  statute  declared  to  be  real  fixtures,  and  others  to  be  chattel 
fixtures." 

Character  of  Annexation, 

The  manner  in  which  a  fixture  is  attached  or  annexed  to  the 
realty  is  indicative  of  the  intention  with  which  it  was  placed  there. 
It  shows  whether  it  was  intended  to  be  permanent  or  to  be  sub- 
sequently removed.^'  Some  cases  make  the  manner  of  fastening 
a  thing  the  test  of  its  character  as  a  fixture.*^  By  some  of  these 
courts  a  thing  does  not  become  a  real  fixture  unless  it  is  so  an- 
nexed to  the  land  that  its  severance  would  cause  a  considerable 
injury  to  the  realty.®^  Although  annexation  is  largely  a  question 
of  fact  in  each  case,  it  has  been  held  that  there  may  be  an  at- 
tachment of  a  thing  to  the  land  by  its  weight  alone;  ®®  for  instance, 
a  heavy  statue  on  a  pedestal,^*^  or  a  dry  stone  wallJ^ 

«s  1  Stim.  Am.  St.  Law,  §§  2100-2102. 

e«  Teaff  v.  Hewitt,  1  Ohio  St.  511;  Rogers  v.  Brokaw,  25  N.  J.  Eq.  496;  Red- 
Ion  V.  Barker,  4  Kau.  445;  O'Donnell  v.  Hitchcock,  118  Masb.  401;  Penny- 
becker  v.  McDougal,  48  Cal.  160;  Cook  v.  Whiting,  16  111.  480;  Sayles  v. 
Purifying  Ck).  (Sup.)  16  N.  Y.  Supp.  555;  Jones  v.  Bull  (Tex.  Sup.)  19  S.  W. 
1031;  Kendall  v.  Hathaway,  67  Vt.  122,  30  Atl.  859;  Chase  v.  Box  Co.,  11  Wash. 
877,  39  Pac.  639;  RoseviUe  Alta  Mln.  Co.  v.  Iowa  Gulch  Min.  Co.,  15  Colo.  29, 
29  Pac.  920;  Strickland  v.  Parker,  54  Me.  263. 

«T  Rex  V.  Otley,  1  Bam.  «&  Adol.  161;  Wansbrough  v.  Maton,  4  Adol.  &  E. 
884;  Ex  parte  Astbury,  4  Ch.  App.  630;  Wadleigh  v.  Janvrin,  41  N.  H.  503; 
Carpenter  v.  Walker,  140  Mass.  416,  5  N.  E.  160.  But  see  Landon  v.  Piatt, 
84  Conn.  517. 

es  Bewick  v.  Fletcher,  41  Mich.  625,  3  N.  W.  162;  Murdock  v.  Gifford,  18  N. 
Y.  28;  Ford  v.  Cobb,  20  N.  Y.  344;  Vanderpoel  v.  Van  Allen,  10  Barb.  157; 
Whiting  v.  Brastow,  4  Pick.  310;  Swift  v.  Thompson,  9  Conn.  63;  Hunt  v. 
MuUanphy,  1  Mo.  361;  Lanphere  v.  Lowe,  3  Neb.  131;  FuIIam  v.  Stearns,  30 
Vt.  443;  Bartlett  v.  Wood,  32  Vt  372.  But  see  Tiftt  v.  Horton,  53  N.  Y.  377; 
Morrison  v.  Berry,  42  Mich.  389,  4  N.  W.  731;  Quinby  v.  Paper  Co.,  24  N.  J. 
Eq.  260;  Degraffenreid  v.  Scruggs,  4  Humph.  (Tenn.)  451;  Thresher  v.  Water 
Works,  2  Barn.  &  C.  608. 

89  Smith  v.  Blake,  96  Mich.  542,  55  N.  W.  978;  Miller  v.  Waddlngham  (Cal.) 
25  Pac.  688. 

7  0  Snedeker  v.  Warring,  12  N.  Y.  170;  Oakland  Cemetery  Co.  v.  Bancroft, 
161  Pa,  St.  197,  28  Atl.  1021. 

ti  EweU,  Flxt.  31.    Cf.  Noble  v.  Sylvester,  42  Vt  14tJ. 


i4  WHAT    IS    EEAL   PROPERTY.  (Cb.   1 

Same —  Severance. 

Chattels  which  have  become  realty  by  a  permanent  annexation 
may  nevertheless  be  converted  into  personalty  again  by  being  sev- 
ered from  the  realty  by  the  owner  with  an  intent  to  produce  that 
effect. '=  A  mere  intention  to  sever  is  not,  however,  sufficient.'^' 
This  severance  need  not  be  actual,  but  may  be  constructive,  as 
by  the  execution  of  a  bill  of  sale  or  chattel  mortgage.'*  A  mere 
temporary  severance,  however,  though  actual,  will  not  change  the 
character  of  a  real  fixture.'"^  For  instance,  when  machinery  is 
taken  from  a  mill  for  repairs,  it  does  not  thereby  become  personal 
property.'" 

Same —  Constrxictive  Annexation. 

Chattels  may  become  realty  by  constructive  annexation;  for 
instance,  keys  to  a  house,  storm  windows,  etc.,  though  not  at  the 
time  fastened  to  the  house,  will  pass  with  a  conveyance  of  the 
realty. '^  And  the  same  has  been  held  as  to  saws  and  belts  in  a 
factory,^'  and  rolls  in  an  iron  mill,  though  detached.'^"  As  to 
whether  railway  cars  are  real  or  personal  property  the  cases  are 
conflicting,^"  but  the  tendency  of  late  cases  is  to  consider  them 

Ta  Morgan  v.  Varick,  8  Wend.  587;  Bliss  v.  Misner,  4  Thomp.  &  0.  633; 
Gardner  t.  Flnley,  19  Barb.  317;  Davis  v.  Emery,  61  Me.  140.  See,  also,  Tay- 
lor V.  Townsend,  8  Mass.  411. 

T»  Bratton  v.  Clawson,  2  Strob.  478. 

7  4  Davis  v.  Emery,  61  Me.  140;  Shaw  v.  Oarbrey,  13  Allen  (ilass.)  462. 
See,  however,  Richardson  v.  Ck)peland,  6  Gray  (Mass.)  536;  Dudley  v.  Foote  63 
N.  H.  57. 

T 6  Rogers  T.  Gilinger,  30  Pa.  St  185;  Wadleigh  v.  Janvrin,  41  N.  H.  503; 
r>avl3  V.  Emery,  61  Me.  140.  So  fence  boards,  though  temporarily  removed,' 
remain  part  of  the  realty,  so  as  to  pass  to  a  vendee.  Goodrich  v.  Jones,  2 
Hill  (N.  Y.)  142;  McLaughlin  v.  Johnson,  46  III.  163.  But  see  Harris  v. 
Scovel,  85  Mich.  32,  48  N.  W.  173. 

T9  Wadleigh  v.  Janvrin,  41  N.  H.  503. 

7  7  Ewell,  Fixt  33.     See,  also,  Wadleigh  v.  Janvrin,  41  N.  H.  503, 

7«  Burnside  v.  Twitchell,  43  N.  H.  390;    Farrar  v.  Stackpole,  6  Me.  154. 

7»  Voorhls  v.  Freeman,  2  Watts  &  S.  116.  And  see  Keating  Implement  Co. 
V.  Marshall  Electric  Light  &  Power  Co.,  74  Tex.  605,  12  S.  W.  489;  McFadden 
r.  Crawford,  36  W.  Va.  671,  15  S.  E.  408. 

80  For  cases  holding  them  realty,  see  Farmers'  Loan  &  Trust  Co.  v.  Hen- 
drickson,  25  Barb.  484;  Palmer  v.  Forbes,  23  111.  301;  Titus  v.  Mabee  25 
lU.  257;  Farmers'  Loan  &  Trust  Co.  v.  St.  Joseph  &  D.  C.  R.  Co.,  3  Dill 
412,  Fed.  Cas.  No.  4,669;  Baker  v.  Atherton,  15  Pa.  Co.  Ct  R.  471. 


§    5)  WHAT    FIXTURES    REMOVABLE. 


16 


personalty,"  and  there  are  constitutional  provisions  to  this  effect 
in  some  states.*' 

Adaptation  for   Use  with  the  Bealty, 

Another  circumstance  showing  the  intention  with  which  a  chat- 
tel is  annexed  is  its  adaptation  for  use  with  the  realty.**  Some 
cases  even  regard  this  as  a  decisive  test.**  The  principal  appli- 
cation of  the  rule  is  to  machinery,  engines,  and  boilers  in  mills 
and  factories,  without  which  the  business  could  not  be  carried  on.*= 
The  rule  is  not,  however,  extended  to  loose,  movable  machinery, 
no  matter  how  complete  its  adaptation.*®  But  such  things  as  du- 
plicate rolls  in  an  iron  rolling  mill  have  been  held  real  fixtures, 
because  of  their  adaptation  for  use  with  the  mill.*^  The  same  has 
been  held  of  pans  in  salt  works,**  and  of  shelves,  drawers,  and 

81  See  Williamson  v.  Railway  Co.,  25  N.  J.  Eq,  13;  Stevens  v.  Railway 
Co.,  31  Barb.  590;  Beardsley  v.  Bank,  31  Barb.  619;  Hoyle  ^.  Railway  Co., 
54  N.  Y.  314;  Chicago  «&  N.  W.  Ry.  v.  Ft.  Howard,  21  Wis.  45;  Coe  v.  Rail- 
way Co.,  10  Ohio  St.  372;  Midland  Ry.  Co.  v.  State,  11  Ind.  App.  433,  88 
N.  E.  57;    Hoyle  v.  Railway  Co.,  54  N.  Y.  314. 

8s  1  Stim.  Am.  St.  Law,  §  468.  But  there  are  provisions  to  the  contrary 
in  other  states.     Id.  §  2100. 

8  8  Burnside  v.  Twitchell,  43  N.  H.  394;  Murdock  v.  Gifford,  18  N.  Y.  28; 
Smith  Paper  Co.  v.  Servin,  130  Mass.  511;  Ferris  v.  Quinby,  41  Mich.  202, 
2  N.  W.  9;  Curran  v.  Smith,  37  111.  App.  69;  Wade  v.  Brewing  Co.,  10 
Wash.  284,  38  Pac.  1009;    Parsons  v.  Copeland,  38  Me.  537. 

84  Green  v.  Phillips,  26  Grat.  752;  Morris'  Appeal,  88  Pa.  St.  368;  Huston 
V.  Clark,  162  Pa.  St.  435,  29  Atl.  866,  868;  Shelton  v.  Ficklin,  32  Grat  727; 
Brennan  v.  Whitaker,  15  Ohio  St.  446;  Parsons  v.  Copeland,  38  Me.  537; 
Huston  V.  Clark,  3  Pa.  Dist.  R.  2. 

8B  Walker  v.  Sherman,  20  Wend.  636;  Winslow  v.  Insurance  Co.,  4  Mete. 
(Mass.)  306;  Voorhees  v.  McGinnis,  48  N.  Y.  278;  Christian  v.  Dripps,  28 
Pa.  St.  271;  Hill  v.  Hill,  43  Pa.  St.  521;  Laflin  v.  Griffiths,  35  Barb.  58;  Mc- 
Connell  v.  Blood,  123  Mass.  47;  Winslow  v.  Insurance  Co.,  4  Mete.  (Mass.) 
306;  Curran  v.  Smith,  37  111.  App.  69;  Keeler  v.  Keeler,  31  N.  J.  Eq.  181; 
Rice  V.  Adams,  4  Harr.  (Del.)  332;  Trull  v.  Fuller,  28  Me.  545;  Davenport 
V.  Shants,  43  Vt.  546;  Case  Manuf'g  Co.  v.  Garven,  45  Ohio  St.  289.  13  N. 
E.  493;    Citizens'  Bank  v.  Knapp,  22  La,  Ann.  117. 

86  McKim  V.  Mason,  3  Md.  Ch.  186;  Cherry  v.  Arthur,  5  Wash.  St.  787, 
32  Pac.  744.     See  Burnside  v.  Twitchell,  43  N.  H.  390. 

87  Voorhis  v.  Freeman,  2  Watts  &  S.  116;  Pyle  v.  Pennock,  2  Watts  &  S. 
3190. 

•8  Lawton  v.  Salmon,  1  H.  BL  259,  note. 


16  WHAT    IS    REAL    PROPERTY.  (Ch.    1 

counters  in  a  retail  store."      The  test  of  adaptability  has  also  been 
api)lied  to  the  rolling  stock  of  railroads,  making  such  fixtures  real- 

Nature  of  the  Fixtures — Trads  Fixtures. 

A  valuable  aid  in  determining  the  intention  with  which  an  an- 
aexation  is  made  is  found  in  the  nature  of  the  thing  itself.  It  is 
iiot  to  be  presumed  that  one  engaged  in  trade  or  manufacture  will 
attach  valuable  chattels  to  the  realty,  if  his  interest  is  of  limited 
or  uncertain  duration,  and  intend  that  the  things  so  annexed  shall 
remain  part  of  the  realty.  Annexations  of  this  kind  are  called 
"trade  fixtures,"  and  their  removal  is  permitted  with  considerable 
freedom, — in  fact,  is  the  rule  rather  than  the  exception.  Show 
cases,"^  counters  and  shelves,®^  engines,"*  boilers,"*  machinery,'" 
tanks  in  a  distillery,"  and  even  buildings  '^  have  been  held  re- 
movable as  trade  fixtures.  Within  the  principle  governing  trade 
fixtures  come  also  certain  mixed  cases  where  the  annexation  is 

8  9  Tabor  v.  Robinson,  36  Barb.  483.  But  see,  as  to  an  ice  chest,  Park  v. 
Baker,  7  Allen,  78. 

8  0  Farmers'  Loan  &  Trust  Co.  v.  Hendrickson,  25  Bai-b.  484.  And  see 
cases  cited  ante,  note  80. 

«>i  McCall  V.  Walter,  71  Ga.  287. 

9  2  Guthrie  v.  Jones,  108  Mass.  191.  But  see  O'Brien  v.  Kusterer,  27  Mich. 
289. 

»«  Cook  v.  Transportation  Co.,  1  Denio  (N.  Y.)  91;  Lemar  v.  Miles,  4 
Watts,  330;  Robertson  v.  Corsett,  89  ilich.  777;  Crane  v.  Brigham.  11  N. 
J.  Eq.  29. 

9*  Cooper  V.  Johnson,  143  Mass.  108,  9  N.  E.  33;  Conrad  v.  Mining  Co.,  54 
Mich.  249,  20  N.  W.  39;  Merritt  v.  Judd.  14  Cal.  60:  Kelsey  v.  Durkee,  33 
Barb.  410;    Hayes  v.  Mining  Co.,  2  Colo.  273. 

96  Holbrook  v.  Chamberlain,  110  Mass.  155;    Moore  v.  Smith,  24  111.  512. 

96  Chidley  v.  Churchwardens  of  West  Ham,  32  Law  T.  (N.  S.)  486.  So 
vats  of  a  soap  boiler,  but  not  partitions,  etc.,  which  were  put  up  to  com- 
plete the  house,  may  be  taken  on  execution.     Poole's  Case,  1  Salk.  3G8. 

9  7  Beers  v.  St  John,  16  Conn.  322;  Walton  v.  Wray,  54  Iowa,  531,  6  N,  W. 
742;  Kissam  v.  Barclay,  17  Abb.  Prac.  360;  Macdonough  v.  Starbird,  103 
Oal.  15,  38  I'ac.  510;  West  N.  Car,  Ry.  v.  Deal,  90  N.  C.  110;  Security  Loan 
&  Trust  Co.  V.  Willamette  Steam  Mills  Lumbering  «&  Manuf'g  Co.,  99  Cal. 
636,  34  Pac.  321.  But  buildings,  though  erected  solely  for  purposes  of  trade, 
may  be  of  so  substantial  a  character  that  they  are  irremovable.  White- 
head v.  Bennett,  27  Law  J.  Ch.  474.  And  cf.  Felcher  v.  McMillan,  103  Mich. 
494,  61  N.  W.  791. 


§   5)  WHAT   FIXTURES   REMOVABLE.  17 

made  partly  for  purposes  of  trade  and  partly  to  secnre  the  enjoy- 
ment of  the  demised  estate,  as  in  the  case  of  engines  erected  in  a 
colliery  ®*  or  brickyard,  or  trees  set  out  in  a  nursery;  •"  or  it  may 
be  that  the  fixtures  are  partly  for  domestic  use  and  convenience 
and  partly  for  purposes  of  trade.^*' 

Same — Agricultural  Fixtv/res. 

Agricultural  fixtures  are,  as  the  name  shows,  those  which  are 
used  in  farming,  and  consist  principally  of  bams,  sheds,^**^  and  farm 
machinery,  such  as  cotton  gins.^"*  In  England  agricultural  fixtures 
are  for  the  most  pirt  irremovable,*"**  but  the  rule  is  otherwise  in 
many  of  the  United  States,*"*  though  it  is  not  as  liberal  as  in  the 
case  of  trade  fixtures.*"'' 

Manure  made  on  a  farm  becomes  part  of  the  realty,  and  cannot 
be  lawfully  treated  as  personalty  by  one  not  the  owner  of  the 
fee,*°"  except  when  it  is  made  from  material  not  obtained  on  the 
premises,  as  in  the  case  of  a  livery  stable.*"^     Manure  passes  with 

•  8  Lawton  v.  Lawton,  3  Atk.  12. 

•  »  King  V.  Wilcomb,  7  Barb.  263;    Miller  v.  BaJier.  1  Mete.  (Mass.)  27. 

100  Van  Ness  v.  Pacard,  2  Pet.  137,  held  that  a  dwelling  house  erected  by 
a  dairyman  and  used  as  accessory  to  that  business  was  removable.  See, 
also.  Wall  T.  Hinds,  4  Gray,  256;    Oapehart  v.  Foster  (Minn.)  63  N.  W.  257. 

101  Elwes  V.  Maw,  3  East,  38. 

10  2  McJunkin  v.  Dupree,  44  Tex.  500.    But  see  Bond  v.  Ooke,  71  N.  C.  97. 

108  See  Elwes  v.  Maw,  3  East,  38,  where  an  agricultural  tenant  erected 
Beyeral  outbuildings  of  brick  and  mortar  and  let  them  into  the  ground,  he  was 
not  permitted  to  remove  them. 

104  Wing  V.  Gray,  36  Vt  261;  Harkness  y.  Sears,  26  Ala.  493;  Dubois  v. 
Kelly,  10  Barb.  496;    Holmes  v.  Tremper,  20  J  onus.  29. 

100  Tyler,  Fixt.  271;  Perkins  v.  Swank,  43  Miss.  349;  Leland  v.  Gassett, 
17  Vt  403. 

106  Ferry  v,  Carr,  44  N.  H.  118;  Hill  v.  De  Rochemont,  48  N.  H.  87;  Dan- 
iels v.  Pond,  21  Pick.  367;  Middlebrook  v,  Corwin,  15  Wend.  169.  Manure 
In  a  heap  Is  personalty,  but  when  scattered  upon  the  ground  it  becomes 
part  of  the  realty.  Yearworth  v.  Pierce,  Aleyn,  31;  Ruckman  v.  Outwater, 
28  N.  J.  Law,  581;  Fay  v.  Muzzey,  13  Gray,  53;  Collier  v.  Jenks  (R.  I.)  32 
AtL  208.  And  see  Lassell  t.  Reed,  6  GreenL  (Me.)  222.  It  has  been  held 
that  manure  may  be  taken  on  execution  against  a  tenant  at  will  without 
Incurring  liability  to  the  landlord.    Staples  v.  Emery,  7  Greenl.  (Me.)  201. 

i«T  Carroll  v.  Newton,  17  How.  Prac.  189;  Plumer  v.  Plumer,  30  N.  H. 
668;    Gallagher  v.  Shipley,  24  Md.  418.     So  manure  made  after  the  sale  of  a 

BEAI.  PROP. — ^ 


18  WHAT    IS    REAL    PROPERTY.  (Ch.    1 

the  freehold  to  a  vendee  of  the  land.""  It  cannot  be  taken  on 
execution  against  the  owner  of  the  fee  unless  he  has  made  it  per- 
sonal property  by  being  severed.^*" 

Same — DoiTiestic  Fixtv/res. 

Certain  annexations  may  be  removed  as  domestic  fixtures,  which 
comprise  such  things  as  stoves,'"  wash  tubs  fastened  to  the 
house,'''  gas  fixtures,""  chimney-pieces,"*  marble  shelves,"*  and 
sheds.'"  In  the  annexation  of  domestic  fixtures,  it  is  held  that 
there  is  a  stronger  presumption  of  an  intention  to  make  them  per- 
manent additions  to  the  realty  than  with  either  trade  or  agricul- 
tural fixtures,  and  consequently  less  freedom  of  removal.'" 

farm,  where  the  vendor  retains  possession  during  the  winter,  but  carries  on 
no  farming  opei-ations,  may  be  sold  by  him.  Needham  v.  Allison,  24  N.  H. 
855.  But  see  Lassell  v.  Reed,  6  Greenl.  (Me.)  222.  Cf.  Lewis  v.  Jones,  17 
Pa.  St.  262. 

108  Goodrich  v.  Jones,  2  Hill  (N.  Y.)  142;  Daniels  v.  Pond,  21  Pick.  (Mass.) 
8G7;  Kittredge  v.  Woods,  3  N.  H.  503.  Contra,  Ruckman  v.  Cutwater,  28 
N.  J.  Law,  581.  It  may  be  reserved  by  a  separate  agreement.  Strong  v. 
Doyle,  110  Mass.  92. 

109  Sawyer  v.  Twiss,  26  N.  H.  845. 

110  Towne  v.  Fiske,  127  Mass.  125;  Gaffleld  v.  Hapgood,  17  Pick.  192. 
Grates.  Aldine  Manuf'g  Co.  v.  Barnard,  84  Mich.  632,  48  N.  W.  280;  Gaf- 
fleld V.  Hapgood,  17  Pick.  192.  And  steam  valves  and  radiators.  National 
Bank  v.  North,  160  Pa.  St.  303,  28  Atl.  694. 

111  Wall  V.  Hinds,  4  Gray,  256.     See,  also,  Kirchman  v.  Lapp  (Super.  Ct.) 

19  N.  Y.  Supp.  831. 

112  Vaughen  v.  Haldeman,  33  Pa,  St  522;  Kirchman  v.  Lapp  (Super.  Ct) 
19  N.  Y.  Supp.  831;  Manning  v.  Ogden,  70  Hun,  893,  24  N.  Y.  Supp.  70. 
Contra,  Johnson's  Ex'r  v,  Wiseman's  Ex'r,  4  Mete.  (Ky.)  357. 

118  Winn  V.  Ingllby,  5  Barn.  &  Aid.  625.  But  see  Spinney  v.  Barbe,  43  111. 
A  pp.  585.  So  pictures  and  glasses  put  up  instead  of  wainscot  were  given  to 
the  heir.  Cave  v.  Cave,  2  Vern.  508.  And  see  D'Eyncourt  v.  Gregory,  L.  R. 
8  Eq.  382;    Cahn  v.  Hewsey,  8  Misc.  Rep.  384,  29  N,  Y.  Supp.  1107. 

11*  Weston  V.  Weston,  102  Mass.  514.  And  see  Sweet  v.  Myers,  3  S.  D. 
824,  53  N.  W.  187. 

11 B  Krouse  v.  Ross,  1  Craneh,  C.  C.  368,  Fed.  Cas.  No.  7,940. 

ii«  See  Buckland  v.  Butterfleld,  2  Brod.  &  B,  54  (where  a  conservatory 
and  pinery,  erected  for  ornament  and  attached  to  the  dwelling  house,  were 
held  part  of  the  realty);  Jenkins  v.  Gething,  2  Johns.  &  H.  520;  State  v. 
Elliot  11  N.  H.  540.  But  In  Grymes  v.  Boweren,  6  Bing.  437,  a  tenant  was 
permitted  to  remove  a  pump  erected  for  domestic  use,  though  quite  firmly 
annexed  to  the  freehold. 


§    5)  WHAT    FIXTURES   EEMOVABLB.  19 

Part/y  Making  the  Annexation. 

The  most  important  consideration  of  all  in  determining  the  proba- 
ble intention  with  which  an  annexation  is  made  is  the  relation  of  the 
person  making  the  annexation  to  the  land  and  the  duration  of  his 
interest  in  it.  The  parties  between  whom  the  question  arises  may 
be  put  into  three  classes,  as  follows:     (1)  Lessor  against  lessee; 

(2)  reversioner  or  remainder-man  against  tenant  for  life  or  in  tail; 

(3)  heir  against  personal  representative  of  an  owner  in  fee  simple, 
vendee  against  vendor,  and  mortgagee  against  mortgagor.  Any 
other  persons  between  whom  the  question  arises  may  easily  be 
shown  to  stand  in  the  same  relation  to  each  other  as  those  in  one 
of  these  three  classes.^"  It  is  obvious  that  one  having  only  a 
short  term  of  years  in  certain  land  will  be  less  likely  to  make  erec- 
tions thereon  with  the  intention  of  having  them  become  permanent 
than  if  his  interest  was  that  of  an  owner  in  fee  simple.  Therefore 
a  tenant  is  accorded  considerable  freedom  in  removing  fixtures, 
and  the  tendency  of  the  modern  cases  seems  to  be  towards  a  great- 
er liberality  in  his  favor,  because  the  presumption  is  very  strong 
that  he  made  the  annexation  in  order  to  secure  more  complete  en- 
joyment during  his  term,  and  not  with  the  intention  of  benefiting 
his  landlord.^"  Persons  having  life  estates  are  in  many  cases 
tenants  in  dower  or  by  curtesy,  and  therefore  often  closely  related 
to  the  one  entitled  to  the  next  estate.     It  is  accordingly  not  diffi- 

117  For  other  relations,  equivalent  to  the  fii-st  class,  see  Raymond  v.  White, 
7  Cow.  819;  Heffner  v.  Lewis,  73  Pa.  St.  302;  Havens  v.  Electiic  Light 
Co.  (Sup.)  17  N.  Y,  Supp.  580.  And  for  others,  equivalent  to  the  third 
class,  see  Parsons  v.  Copeland,  38  Me.  537;  Bigler  v.  Bank,  26  Hun,  520; 
Cresson  v.  Stout,  17  Johns.  116;  Gale  v.  Ward,  14  Mass.  352;  Farrar  v. 
Chauffetete,  5  Denio  (N.  Y.)  527;  Goddard  v.  Chase,  7  Mass.  432;  Tudor 
Iron  Works  v.  Hitt,  49  Mo.  App.  472. 

118  Youngblood  v.  Eubank,  68  Ga.  630;  Thomas  v.  Orout,  5  Bush  (Ky.)  37; 
Ambs  V.  Hill,  10  Mo.  App.  108;  Osgood  v.  Howard,  6  Greenl.  (Me.)  452. 
Cf.  Deane  v.  Hutchinson,  40  N.  J.  Eq.  83,  2  Atl.  292.  For  cases  of  trade  fix- 
tures, see  Raymond  v.  White,  7  Cow.  319;  Andrews  v.  Button  Co.,  132  N. 
Y.  348,  30  N.  E.  831;  Conrad  v.  Mining  Co.,  54  Mich.  249,  20  N.  W.  39; 
Hayes  v.  Mining  Co.,  2  Colo.  273;  Powell  v.  Bergner,  47  111.  App.  33;  Berger  v. 
Hoemer,  36  111.  App.  360;  Lang  v.  Cox,  40  Ind.  142;  Western  N.  C.  Ry.  Co.  v. 
Deal,  90  N.  C.  110;  Cubbins  v.  Ayres,  4  Lea  (Tenn.)  329;  Brown  v.  Power  Co., 
55  Fed.  229.  Domestic  fixtures.  Jenkins  v.  Gething,  2  Johns.  &  H.  520;  Gaf- 
field  V.  Hapgood,  17  Pick.  192. 


20  WHAT    18    REAL    PROPERTY.  (Ch,    1 

cult  to  suppose  an  intention  to  mal^e  permanent  annexations  for 
the  benelit  of  the  ostate.^^^  And  the  same  reasons  hold  good 
in  the  case  of  a  tenant  in  tail.  The  assignees  of  life  tenants  and 
of  tenants  in  hiil  are  in  the  same  situation,  and  are  therefore  ac- 
corded no  greater  freedom  in  removing  fixtures.^^**  On  the  same 
principle,  when  a  question  of  fixtures  arises  between  the  heir  and 
personal  representative  of  an  owner  in  fee,  the  presumptions  are 
all  in  favor  of  the  former,^*^  and  the  same  is  true  between  vendee 
and  vendor,^"  or  mortgagee  and  mortgagor,^^^  because  a  tenant 

119  D'Eyncourt  v.  Gregorj',  L.  R.  3  Eq.  382;  Gannon  v.  Hare,  1  Tenn.  Cb. 
22;  Cave  v.  Cave,  2  Vem.  508;  Lawton  v.  Salmon,  1  H.  Bl.  2G0,  note;  Mc- 
Cullough  V.  Irvine's  Ex'rs,  13  Pa.  St  438;  Gledden  v.  Bennett,  43  N.  H.  306; 
Domby  v.  Farse,  53  Ark.  526,  14  S.  W.  809;  Lord  Ellenborough,  C.  J.,  in 
Elwes  V.  Maw,  3  East,  51.  Some  erections  are,  however,  held  removable. 
Lawton  v.  Lawton,  3  Atk.  12;  Dudley  v.  Warde,  Amb.  113;  Overman  v. 
Sasser,  107  N.  C.  432,  12  S.  E.  64;  Clemence  v  Steere,  1  R.  I.  272.  So  far 
as  a  tenant  for  life  is  individually  concerned,  "his  estate  lasts  forever.  It 
is  only  terminated  by  his  death.  He  can  have  no  personal  interest  in  the 
removal  of  fixtures  at  the  end  of  his  term.  The  only  interest  he  can  possi- 
bly take  in  the  matter  is  the  welfare  of  his  heirs.  Whatever  addition  he 
makes  to  the  permanent  betterment  of  the  estate,  he  will  be  permitted  to 
enjoy  all  his  life,  and  therefore  there  is  the  same  reason  for  finding  that 
he  Intended  such  betterment  to  last  and  continue  through  his  term  as  there 
is  in  case  of  the  owner  in  fee."     Tbomp,  Fixt.  &  Easem.  31. 

120  White  V.  Amdt,  1  Whart.  91;  Haflick  v.  Stober,  11  Ohio  St.  482;  Demby 
T.  Parse,  53  Ark.  526,  14  S.  W.  899;  Elam  v.  Parkhill,  60  Tex.  581. 

121  Heniy's  Case,  Y.  B.  20  Hen.  VII.  p.  13,  pi..  24;  Anon.,  Y.  B.  21  Hen. 
VII.  p.  26,  pi,  4;  Lawton  v.  Salmon,  1  H.  Bl.  259,  note;  Fisher  v.  Dixon, 
12  Clark  &  F.  312;  Bain  v.  Brand,  1  App.  Gas.  762;  Gibbs  v.  Estey,  15 
Gray  (JLiss.)  587;  Stillman  v.  Flenniken,  58  Iowa,  450,  10  N.  W.  842;  Kin- 
sell  V.  Billings,  35  Iowa,  154;  McDavid  v.  Wood,  5  Heisk.  (Tenn.)  95.  So 
of  an  annexation  by  a  tenant  In  common.  Baldwin  v.  Breed,  16  Conn.  60. 
Contra,  Squier  v.  Mayer,  Freem.  Oh.  249.  But  see,  as  to  trade  fixtures,  Mur- 
dock  V.  Gifford,  18  N.  Y.  28. 

12  2  Noble  V.  Bosworth,  19  Pick.  (Mass.)  314;  Tabor  v.  Robinson,  36  Barb. 
483;  Voorheea  v.  McGinnis,  48  N.  Y.  278;  Miller  v.  Plumb,  6  Cow.  665; 
Leonard  v,  Clough,  133  N.  Y.  292,  31  N.  E.  93;  Coher  v.  Kyler,  27  Mo.  122; 
Hutchins  v.  Masterson,  46  Tex.  551;  Pea  v.  Pea,  35  Ind.  387.  But  see 
Leonard  v.  Clough,  59  Hun,  627,  14  N.  Y.  Supp.  339.  So  one  making  erec- 
tions on  land  which  he  holds  under  contract  to  purchase  cannot  remove 
them  If  he  falls  to  carry  out  the  contract     McLaughlin  v.  Nash,  14  Allen, 

Its  Kee  note  123  on  following  page. 


I    5)  WHAT   FIXTURES   REMOVABLE.  21 

in  fee  is  not  likely  to  make  annexations  with  any  intention  of  re- 
moving them,  but  rather  for  the  benefit  of  his  property.  It  is 
not  true,  however,  that  all  chattels  pass  with  the  realty,  although 
annexed  by  one  owning  the  fee.  For  instance,  carpets,  pictures, 
and  gas  fixtures  retain  their  character  as  personal  property.^ 2* 
When  chattels  are  annexed  to  the  realty  by  a  stranger  without 
authority  they  become  the  property  of  the  owner  of  the  soil.^^" 
But,  if  put  there  in  good  faith,  the  enhanced  value  of  the  land  may 
be  set  off  in  an  action  for  rent.^^e     r^^^  game  rules  apply  to  trees 

136;  Hinkley  v.  Black,  70  Me.  473;  Ogden  v.  Stock,  34  lU.  522;  Michigan 
Mut.  Life  Ins.  Co.  v.  Cronk,  93  Micli.  49,  52  N.  W.  1035;  Miller  v.  Wadding- 
ham  (Cal.)  25  Pac.  6SS;    Hemenway  v.  Cutler,  51  Me.  407. 

123  Winslow  V.  Insurance  Co.,  4  Mete.  (Mass.)  306;  Ex  parte  Astbury,  4 
Ch.  App.  630;  Climie  v.  Wood,  L.  R.  4  Exch.  328;  Clary  v.  Owen,  15  Gray 
(Mass.)  522;  Brennan  v.  Whitaker,  15  Ohio  St.  446;  Davenport  v.  Shants,  43 
Vt.  546;  Burnside  v.  Twitchell,  43  N.  H.  390;  Tifft  v.  Horton,  53  N.  Y.  377; 
McConnell  v.  Blood,  123  Mass.  47;  Rogers  v.  Brokaw,  25  N.  J.  Eq.  496; 
Woodham  v.  Bank,  48  Minn.  67,  50  N.  W.  1015.  As  to  machinery  annexed 
for  trade  purposes,  see  Helm  v.  Gilroy,  20  Or.  517,  26  Pac.  851;  Hathaway 
v.  Insurance  Co.,  58  Hun,  602,  11  N.  Y.  Supp.  413;  Calumet  Iron  &  Steel  Co. 
V.  Lathrop,  36  111.  App.  249;  Phelan  v.  Boyd  (Tex.  Sup.)  14  S.  W.  290.  But 
for  trade  fixtures  held  removable,  see  Rogers  v.  Brokaw,  25  N.  J.  Eq.  496;. 
Johnson  v.  Mosher,  82  Iowa,  29,  47  N.  W.  996.  Cf.  Padgett  v.  Cleveland,. 
83  S.  C.  339,  11  S.  E.  1069.  The  mortgagee  is  entitled  to  fixtures  erected 
after  the  execution  of  the  mortgage  as  against  an  assignee  of  the  mortgagor. 
Walmsley  v.  Milne,  7  C.  B.  (N.  S.)  115;  Holland  v.  Hodgson,  L.  R.  7  C.  P. 
828;  Winslow  v.  Insurance  Co.,  4  Mete.  (Mass.)  306;  Cooper  v.  Harvey,  62 
Hun,  618,  16  N.  Y.  Supp.  660;  Snedeker  v.  Warring,  12  N.  Y.  170;  Kloess 
V.  Katt,  40  111.  App.  99;  Seedhouse  v.  Broward,  34  Fla.  509,  16  South.  425; 
Sands  v.  Pfeiffer,  10  Cal.  258. 

124  jarechi  v.  Society,  79  Pa.  St.  403;  McKeage  v.  Insurance  Co.,  81  N.  Y. 
38;  Towne  v.  Fiske,  127  Mass.  125.  Cf.,  however.  Central  Trust  &  Safe 
Deposit  Co.  V.  Cincinnati  Grand  Hotel  Co.,  26  Wkly.  Law  Bui.  149. 

125  Madigan  v.  McCarthy,  108  Mass.  376;  Inhabitants  of  First  Parish  in 
Sudbury  v.  Jones,  8  Cush.  184;  Huebschmann  v.  McHenry,  29  Wis.  655. 
Otherwise,  when  the  owner  consents.  Fuller  v.  Tabor.  39  Me.  519;  Gregg 
V.  Railway  Co.,  48  Mo.  App.  494;  Merchrnts'  Nat  Bank  v  Stanton  (Minn.) 
56  N.  W.  821.     But  see  Histe  v.  Buckley,  8  Ohlc  Cir.  Ct  R.  470. 

128  Green  v.  Biddle,  8  Wheat.  1;  Hylton  v.  Brown,  2  Wash.  C.  C.  165,  Fed. 
Cas.  No.  6,983;  Jackson  v.  Loomis,  4  Cow.  168.  And  see  Oregon  Railway 
&  Nav.  Co.  v.  Hosier,  14  Or.  519,  13  Pac.  300. 


22  WHAT    IS    REAL    PROPERTY.  (Ch.   1 

spt  out  and  crops  planted  by  one  not  the  owner."^  It  is  seen 
from  the  foregoing  that  the  presumption  of  chattel  character  of  a 
fixture  is  stronger  in  the  first  than  in  the  second  class,  and  in  the 
second  than  in  the  third;'"  and  consequently  cases  holding  fix- 
tures removable  against  a  mortgagee  or  vendee  in  fee  are  author- 
ity to  the  same  effect  against  a  remainder-man  or  a  lessor,  and  so 
in  the  other  classes;  and  cases  holding  fixtures  irremovable 
against  a  lessee  are  authority  for  holding  them  irremovable  against 
any  other  person. 

6.  TIME  OF  REMOVAL— Where  the  tenant's  interest  is 
of  definite  duration,  the  removal  must  be  before  its 
termination.  Where  the  interest  is  of  indefinite 
duration,  the  removal  must  be  within  a  reasonable 
time  alter  its  termination. 

Where  the  interest  of  the  one  making  the  annexation  is  of 
definite  duration,  the  right  to  remove  fixtures  must  be  exercised 
before  the.  termination  of  that  interest  or  an  abandonment  of  the 
right  will  be  presumed;^"  and  in  cases  of  an  interest  of  uncer- 
tain duration,  the  removal  must  be  within  a  reasonable  time  after 
the  interest  comes  to  an  end.""    These  rules  do  not  apply  when 

127  Simpkins  v.  Rogers,  15  111.  397;  Mitchell  v.  Billingsley,  17  Ala.  391; 
Boyer  v.  Williams,  5  Mo.  335. 

128  Van  Ness  v.  Pacard,  2  Pet.  137. 

129  Sampson  v.  <:k)tton  Mills,  64  Fed.  939;  White  v.  Arndt,  1  Whart.  (Pa.) 
91;  Mackintosh  v.  Trotter,  3  Mees.  &  W.  184;  Gibson  v.  Railway  Co.,  32 
Law  J.  Ch.  337;  Saint  v.  Pilley,  L.  R.  10  Exch.  137;  Haflick  v.  Stober,  11 
Ohio  St.  482;  Friedlander  v.  Ryder,  30  Neb.  783,  47  N.  W.  83;  Davis  v. 
BufEum,  51  Me.  IGO;  Josslyn  v.  McCabe,  40  Wis.  591,  1  N.  W.  174;  Thomas 
V.  Grout,  5  Bush  (Ky.)  37.  Cf.  Dubois  v.  Kelly,  10  Barb.  496.  If  a  lessee 
mortgages  tenant's  fixtures,  and  afterwards  surrenders  his  lease,  the  mort- 
gagee has  a  right  to  enter  and  sever  them.  London  &  Westminster  Loan  & 
Discount  Ck).  v.  Drake,  6  C.  B.  (N.  S.)  798.  See,  also.  McKenz^e  v.  City  of 
Lexington,  4  Dana  (Ky.)  130. 

180  Where  a  landlord  enters  on  his  tenant  for  breach  of  condition,  and 
thereby  puts  an  end  to  the  tenancy,  the  right  to  remove  fixtures  is  gone. 
Pugh  v.  Arton,  L.  R.  8  Eq.  626;  Weeton  v.  Woodcock,  7  Mees.  &  W.  14; 
Ex  parte  Brook,  10  Ch.  Div.  100;  Morey  v.  Hoyt.  62  Conn.  542,  26  Atl.  127. 
Ct  Dunman  v.  Railway  Co.  (Tex.  Civ.  App.)  26  S.  W.  304;    Antoni  v.  Bel- 


0    Yx  EQUITABLE    CONVERSION. 

the  removal  of  the  fixtures  is  wrongfully  prevented  by  injunction 
or  otherwise."^  And  a  tenant  holding  over  with  the  consent  of 
the  landlord  does  not  lose  his  right  of  removal."^  Fixtures 
wrongfully  removed  may  bo  recovered  by  the  person  entitled  to 
them  in  the  hands  of  any  one  -«  not  a  bona  fide  purchaser."* 

SAME— EQUITABLE  CONVERSION. 

7.  Equitable  conversion  is  a  notional  change  in  the  char- 
acter of  property,  by  means  of  which 

(a)  Personal  property  is  made  real  and 

(b)  Real  property  is  made  personal. 

"Money  directed  to  be  employed  in  the  purchase  of  land,"'  and 
land  directed  to  be  sold  and  turned  into  money,"«  are  to  be  con- 
knap  102  Mass.  193;  Cooper  v.  Johnson.  143  Mass.  108,  9  N.  E.  33;  Berger 
n^erner.  36  111.  App.  360;  Sullivan  v.  Garberry.  67  Me.  531;  Turner  v. 
Kennedy,  57  Minn.  104,  58  N.  W.  823;    Martin  v.  Roe,  7  El.  &  Bl.  237. 

X81  Bircher  v.  Parker,  40  Mo.  118. 

x.»  Lewis  V.  Pier  Co.,  125  N.  Y.  341,  26  M.  E.  301;  Kerrey  v.  Burnett,  88 
N  J  Law  457;  Fitzgerald  v.  Anderson,  81  Wis.  341,  51  N.  W.  554;  Brown 
v'  Power  Co!  55  Fed  229.  Cf.  Free  v.  Stuart,  39  Neb.  220,  57  N.  W.  991; 
Thorn  V.  Sutherland,  123  N.  Y.  236.  25  N.  E.  362.  But  by  accepting  a  new 
lease,  with  different  terms  and  covenants,  he  may  lose  the  right  Watnss  v. 
Bank  124  Mass.  571;  Loughran  v.  Ross,  45  N.  Y.  792;  Talbot  v  Cruger  81 
Hun  504  30  N.  Y.  Supp.  1011;  Mclver  v.  Estabrook,  134  Mass.  550;  Wright 
r.  M^cdonell  (Tex.  Civ.  App.)  27  S.  W.  1024;  Merritt  v.  Judd,  14  Cal.  60.  But 
see  KeiT  v.  Kingsbury,  39  Mich.  150. 

183  ogden  V.  Stock,  34  111.  522;  Central  Branch  R.  Co.  v.  Fntz,  20  Kan.  4o0 
Huebschmann  v.  McHenry,  29  Wis.  655;   Sands  v.  Pfeiffer,  10  Cal.  259.     CL 
Salter  v.  Sample.  71  111.  430;    Hartwell  v.  Kelly.  117  Mass.  235.     But  see  2 
Jones,  Real  Prop.  §  1760. 

184  Peirce  v.  Goddard,  22  Pick.  559. 

x»B  Kettleby  v.  Atwood,  1  Vern.  298;  on  rehearing.  Id.  471;  Chichester  y. 
Bicherstaff  2  Vern.  295;  Sweetapple  v.  Blndon,  Id.  626;  Scudmore  v.  Scud- 
more,  Prec.  Ch.  544;  Craig  v.  Leslie,  3  Wheat.  563-  in  re  Becker's  Estate. 
150  Pa.  St  524,  24  Atl.  687.  t     t?     is 

180  Fletcher  v.  Ashbumer.  1  Brown,  Ch.  497;  Steed  v.  Preece  L  R  18 
Eq  192;  Evans  v.  Kingsberry,  2  Rand.  (Va.)  120;  Turner  v.  Davis,  41  Ark 
270;  Fluke  v.  Fluke.  16  N.  J.  Eq.  478;  Roy  v.  Monroe.  47  N.  J.  Eq.  3o6.  20 


24  WHAT    IS    REAL    PROPERTY.  (Ch.    1 

sidered  as  that  species  of  property  into  which  they  are  directed 
to  be  converted;  and  this  in  whatever  manner  the  direction  is 
given, — whether  by  will,^'^  by  way  of  contract,  marriage  articles, 
settlement,  or  otherwise;^'"  and  whether  the  money  is  actually 
deposited  or  only  covenanted  to  be  paid;  whether  the  land  is 
actually  conveyed  or  only  agreed  to  be  conveyed."  ^"  This  sub- 
ject properly  belongs  however  to  works  on  equity/*" 

8.  SAME— PERSONAL  INTERESTS  IN  LAND. 

There  are  also  certain  interests  in  land  which  are  treated  as 
personal  property.  For  instance,  chattels  real,"^  which  are  es- 
tates less  than  freehold,  or  leaseholds.^*'  Long  terms  of  years 
are,  however,  in  some  states  made  real  property  by  statute.^*^ 
These  and  other  personal  interests  in  land,  such  as  a  mortgage 
debt,  will  be  treated  of  in  other  connections.  Corporate  shares 
are  not  real  property,  even  though  the  property  which  constitutes 
the  capital  of  the  corporation  is  realty.    The  ownership  of  this 

Atl.  481;  Crane  v.  Bolles,  49  N.  J.  Eq.  373,  24  Atl.  237;  In  re  Blauvelt  (Sup.) 
15  N.  Y.  Supp.  586;  Fraser  v.  Trustees,  124  N.  Y.  479,  26  N.  E.  1034;  Bolton 
V.  Myers,  146  N.  Y,  257,  40  N.  E.  737.  But  see  In  re  Machemer's  Estate,  140 
Pa.  St.  544,  21  Atl.  441. 

187  Fletcher  v.  Ashburner,  1  Brown,  Ch.  497;  Craig  v.  Leslie,  3  Wheat.  563; 
Jones'  Ex'rs  v.  Jones,  13  N.  J.  Eq.  236;  Hyman  v.  Devereux,  63  N.  C.  624; 
MagTuder  v.  Peter,  11  Gill  &  J.  217;  Massey  v.  Modawell,  73  Ala.  421;  Dodge 
V.  \Yilliams,  40  Wis.  70,  1  N.  W.  92,  and  50  N.  W.  1103;  Gould  v.  Orphan  Asy- 
lum, 46  Wis.  106,  50  N,  W.  422;  Underwood  v.  Curtis,  127  N.  Y.  523,  28  N. 
E.  585;  Davenport  v,  Kirkland,  156  111.  169,  40  N.  E.  304.  The  direction  must 
be  positive.  Darlington  v.  Darlington,  160  Pa.  St  65,  28  Atl.  503;  In  re 
lugersoirs  Estate,  167  Pa.  St.  536,  31  Atl.  858,  859. 

188  In  re  Hirst's  Estate,  147  Pa.  St.  319,  23  Atl.  455;  Dobson's  Estate.  11 
Phlla.  81;  Evans  v.  Kingsberry,  2  Hand.  (Va.)  120;  Masterson  v.  PuUen,  62 
Ala.  145;   Turner  v.  Davis,  41  Ark.  270;   Hunter  v.  Anderson,  152  Pa.  St.  386, 

25  Atl.  538;   Williams  v.  Haddock,  145  N.  Y.  144,  39  N.  E.  825. 
139  Sewell,  J.,  in  Fletcher  v.  Ashburner,  1  Brown,  Ch.  499. 

1*0  Fetter,  Eq.  p.  67;    Bisp.  Eq.  (4th  Ed.)  370;   3  Pom.  Eq.  (2d  Ed.)  p.  1765. 
1*1  As  to  other  chattels  real,  see  Schouler,  Pers.  Prop.  (2d  Ed.)  23. 
1*2  Keating  v.  Condon,  68  Pa.  St.  75;   Hellwig  v.  Bachman,  26  111.  App.  16.^. 
And  see  post,  p.  128. 
148  1  stim.  Am.  St.  Law,  {  1300. 


§    8)  PERSONAL    INTERESTS    IN    LAND.  25 

realty  is  in  the  corporation  and  not  in  the  individual  stockholders. 
Therefore  their  interests  are  personalty  only.^** 

1**  BUgh  V.  Brent,  2  Younge  &  C.  Exch.  268;  South  Western  Ry.  y.  Thoma- 
son,  40  Ga.  408;  Arnold  v.  Ruggles,  1  R.  I.  165;  Mohawk  &  H.  R.  Co.  v. 
Clute,  4  Paige,  Ch.  384;  Toll  Bridge  Co.  v.  Osbom,  85  Conn.  7.  But  shares 
In  a  tumpilie  company  were  held  realty  in  Welles  v.  Cowles,  2  Conn.  567; 
and  in  a  water  company,  in  Drybutter  v.  Bartholomew,  2  P.  Wms.  127.  And 
see  Price  T.  Price's  Heirs,  6  Dana  (Ky.)  107;  Codman  v.  Winslow,  10  Mass. 
140. 


26  TENURE   AND   SEISIN.  (Ch.   2 

CHAPTER  H. 

TENURE  AND  SEISIN. 

9.    Tenure. 
10.    Seisin. 

TENURE. 

9.  Tenure  slg^nifles  the  holding  of  lands  or  tenements  in 
subordination  to  some  superior,  and  the  terms  of 
the  holding.* 

The  Feudal  System. 

The  feudal  system,  which  William  the  Conqueror  introduced 
into  England,  was  a  system  of  military  government,  founded  on 
the  personal  allegiance  of  the  members  of  the  organization  to  the 
leaders,  and  not  a  government  resting  on  the  obligations  of  citizen- 
ship. Under  the  feudal  system,  the  king  was  surrounded  by  a 
body  of  men  pledged  to  his  support  in  war.  The  followers  of  the 
king  likewise  had  their  own  followers,  bound  to  them  in  the  same 
way.  This  Norman  military  organization  established  itself  in  Eng- 
land, and  the  English  lands  were  granted  to  the  followers  of  Wil- 
liam as  a  reward  for  past  services  and  for  services  to  be  rendered 
in  the  future.  That  is,  the  lands  were  held  on  the  condition  that 
the  grantees  should  perform  the  military  and  other  obligations 
owed  by  them  on  account  of  their  position  as  members  of  the 
feudal  organization,  and  such  additional  obligations  as  might  be 
imposed  in  connection  with  the  grant.  It  was  customary  for  each 
tenant  of  the  king  to  subdivide  his  portion,  distributing  the  greater 
part  of  it  among  subtenants  on  similar  conditions  of  tenure  to 
those  which  he  himself  was  under  obligation  to  perform  to  the 
sovereign.  In  this  way  a  vast  social  structure  was  erected,  with 
the  king  or  prince  at  the  apex,  his  immediate  tenants  directly  be- 
neath him,  and  so  on  down,  through  the  various  classes  of  sub- 
tenants, until  we  reach  the  class  which  actually  cultivated  the  soil. 

12  Bl.  Comm.  59;   Co.  Ldtt  la. 


§   9)  TENURE,  27 

Beneath  these  there  were  the  serfs  or  slaves,  consisting  chiefly 
of  the  conquered  race  and  their  descendants.  This  was  the  typical 
social  organization  of  the  Middle  Ages. 

Thus  the  feudal  system  of  property  in  land,  as  established  in 
England,  was  based  on  the  theory  that  all  land  held  by  a  subject 
was  derived  originally  by  grant  from  the  crown,  as  sovereign  lord 
or  owner;  that  land  could  not  be  held  by  a  subject  in  absolute 
independent  ownership,  as  personal  property  is  owned,  for  such 
was  the  exclusive  prerogative  of  the  king,  but  that  all  land  was 
held  under  obligation  of  duties  and  services,  imposed  either  by 
force  of  law  or  by  express  terms  of  the  grant,  whereby  a  relation 
was  constituted  and  permanently  maintained,  between  the  tenant 
and  the  crown,  called  the  "tenure"  of  the  land,  characterized  by 
the  quality  of  the  duties  and  services  upon  which  the  land  was 
held.  In  like  manner  the  tenants  of  the  crown  might  grant  out 
parts  of  their  land  to  subtenants  upon  similar  terms  of  rendering 
services,  thereby  creating  a  subtenure  or  relation  of  tenure  be- 
tween themselves,  as  mesne  or  intermediate  lords,  and  their  gran- 
tees, as  tenants,  but  without  affecting  the  ultimate  tenure  under 
the  crown  as  lord  paramount.^  A  tenure  without  the  Interposi- 
tion of  any  mesne  lord  was  called  a  "tenure  in  capite"  or  "tenure 
in  chief."  *  The  estate  of  the  tenant  in  the  land  was  called  a 
"feud,"  "fief,"  or  "fee."  The  infeudation  or  grant  was  effected 
by  the  ceremony  of  feoffment,  or  delivery  of  the  land  by  the  lord 
to  the  tenant,  to  be  held  by  him  upon  the  terms  then  expressed  or 
implied;  and  the  tenant  was  thereby  invested  with  the  seisin  or 
actual  possession  of  the  land.*  Every  acre  of  England  was 
brought  within  the  feudal  principle,  though  the  king  did  not  grant 
all  of  the  land,  but  retained  part  for  his  own  use.  This  was  called 
the  "ancient  demesne  of  the  crown."  * 
Kinds  of  Tenure. 

There  were  several  kinds  of  tenure,  dependent  upon  the  nature 
of  the  services  by  which  land  was  held.  Originally  most  of  the 
tenure  was  military,  or  "tenure  by  knight's  service,"     One  who 

»  Co.  LItt  lOSa. 
8  Leake,  Land,  17. 

*  1  Pol.  &  M.  Hist.  Eng.  Law,  210,  366;  Dig.  Hist.  Real  Prop.  (4th  Ed.)  34;  2 
BL  Comm.  59;   Co.  Lltt  la. 


28  TENURE   AND   SEISIN.  (Ch.  2 

held  by  this  tenure  was  bound  to  serve  as  a  knight  for  40  days  a 
year  in  the  king's  army,  and  to  provide  himself  with  the  equipment 
necessary  for  such  service.'  Serjeanty  was  another  form  of  mili- 
tary tenure.  The  services  in  this  case  consisted  in  certain  personal 
services  rendered  to  the  king  or  lord.  "Tenure  by  grand  serjean- 
ty" was  the  term  which  designated  the  holdings  of  those  who,  In 
return  for  their  lands,  performed  duties  at  the  king's  palace  or  in 
attendance  on  his  person,  such  as  to  be  a  marshal,  a  chamberlain, 
or  a  butler.*  There  were  also  petty  serjeanties,  those  who  held 
by  this  tenure  being  bound  to  do  acts  of  the  same  nature  as  in  the 
case  of  grand  serjeanties,  but  the  duties  were  not  connected  with 
the  king's  person  or  his  palace.  Instances  of  these  services  are  to 
carry  his  letters  in  a  certain  district,  or  to  provide  a  given  number 
of  arrows  or  other  military  supplies  each  year.^  Most  of  the  lands 
owned  by  the  church  were  held  in  "frankalmoigne,"  or  free  alms. 
The  only  services  connected  with  this  tenure  were  of  a  spiritual 
kind,  such  as  prayers  for  the  soul  of  the  donor.*  Another  kind 
of  tenure  was  called  "socage,"  or  "free  and  common  socage." 
Those  who  held  in  socage  had  to  pay  the  lord  a  certain  rent  in  the 
produceofthe  land, or  to  do  certain  defined  work  for  him  onhis  other 
lands,  or  both,  as  the  case  might  be."  This  is  to  be  distinguished 
from  the  agricultural  work  required  of  those  who  held  by  villein 
tenure.  Those  holding  in  villeinage  owed  the  lord  a  given  num, 
ber  of  days  work  each  week,  but  what  they  were  to  do  on  those 
days  the  lord  determined.  The  socage  tenants,  however,  who  owed 
services,  owed  so  many  days  ploughing  or  reaping,  and  could  not 
be  made  to  do  any  other  work.  Those  who  held  by  villein  tenure 
were  for  the  most  part  serfs,  or,  at  least,  unfree  men.    Still,  a  free 

6  1  Pol.  &  M.  Hist.  Eng.  Law,  230;  Dig.  Hist  Real  Prop.  (4th  Ed.)  39,  61n, 
135;   2  Bl.  Ck>mm.  G2;   Co.  Litt.  103. 

9  1  Pol.  &  M.  Hist.  Eng.  Law,  262;  Dig.  Hist.  Real  Prop.  (4th  Ed.)  39;  2 
Bl.  Comm.  73;    Co.  Lltt.  105b. 

T  1  Pol.  &  M.  Hist.  Eng.  Law,  262;  Dig.  Hist.  Real  Prop.  (4th  Ed.)  49;  2 
Bl.  Comm.  74,  81;    Co.  Lltt.  108a. 

«  1  Pol.  &  M.  Hist.  Eng.  Law,  218;  Dig.  Hist.  Real  Prop.  (4th  Ed.)  38;  2 
Bl.  Comm.  101;   Co.  Litt.  93b. 

9  1  Pol.  &  M.  Hist.  Eng.  Law,  271;  Dig.  Hist.  Real  Prop.  (4th  Ed.)  46;  2 
Bl.  Comm.  78;   Co.  Litt.  85a, 


§   9)  TENURE,  29 

man  might  hold  by  this  tenure  and  not  lose  his  freedom.**  It 
must  not  be  thought  that  the  men  holding  by  the  various  kinds  of 
tenure  which  have  been  enumerated  constituted  distinct  classes, 
because  it  was  often  the  case  that  one  man  held  land  by  a  number 
of  different  tenures, — for  instance,  one  parcel  by  knight's  service 
and  another  parcel  by  socage.^*  As  time  went  on,  the  various 
kinds  of  services  arising  from  tenure  came  to  be  regarded  as  due 
from  the  land,  and  not  from  the  person  holding  the  land.  Thus, 
so  many  acres  were  bound  to  furnish  one  knight,  or  owed  certain 
work  to  the  lord;  that  is,  tenure  took  on  a  real,  rather  than  a 
personal,  character.^*  A  further  development  occurred  when  the 
various  services  were  commuted  for  money  payments,  called  "scu- 
tage."  These  finally  took  the  form  of  a  rent.^'  In  later  times 
socage  tenures  gained  the  ascendency,  and  military  tenures  were 
finally  abolished  in  England.^*  Tenure  in  villeinage  became  copy- 
hold tenure,  but  this  form  never  existed  in  this  country.*' 

Incidents  of  Tenure. 

There  were  certain  incidents,  connected  with  military  and  with 
socage  tenure,  which  constituted  their  chief  importance,  and  con- 
tinued to  exist  at  a  time  when  the  services  due  on  account  of  the 
tenure  had  fallen  into  disuse  or  had  become  unimportant.  These 
incidents  were  aid,  relief,  wardship,  and  marriage.  Aids  were 
sums  of  money  which  the  tenant  was  bound  to  pay  the  lord  to 
secure  the  lord's  release  from  prison,  to  help  him  knight  his  son, 
and  to  provide  a  marriage  portion  for  his  eldest  daughter.*®  A 
relief  was  a  sum  which  an  heir  must  pay  the  lord  on  succeeding  to 
the  inheritance.     In  the  case  of  socage  tenements,  this  sum  was 

10  1  Pol.  &  M.  Hist  Eng,  Law,  337;  Dig.  Hist  Real  Prop.  (4tli  Ed.)  51;  2 
Bl.  Comm.  90;   Co.  Lltt  116a. 

11 1  Pol.  &  M.  Hist  Eng,  Law,  276. 

n  1  Pol.  &  M.  Hist.  Eng.  Law,  235. 

i»  1  Pol.  &  M.  Hist.  Eng.  Law,  245;  Dig.  Hist  Real  Prop.  (4tb  EJd.)  129;  2 
Bl.  Comm.  74. 

1*  Dig.  Hist  Real  Prop.  (4th  Ed.)  392. 

16  1  Pol.  &  M.  Hist  Eng.  Law,  351;  Dig.  Hist  Real  Prop.  (4th  Ed.)  151;  2 
BL  Comm.  90;    Co.  Litt.  57b. 

i«  1  Pol.  &  M.  Hist.  Eng.  Law,  330;  Dig.  Hist  Real  Prop.  (4th  Ed.)  41.  48, 
129;   2  BL  Comm.  63,  87. 


30  TENUBE   AND    SKEIN.  (Ch.   2' 

fixed  at  one  year's  rent."  When  an  heir  holding  by  knight's  serv- 
ice was  under  age,  the  lord  possessed  the  right  of  wardship,  and 
under  this  right  he  had  the  custody  of  the  infant's  person  and  of 
his  lands,  and  the  latter  was  a  source  of  no  small  profit  in  the 
case  of  rich  wards,  because  the  lord  was  not  required  to  account 
for  the  rents  and  profits  of  the  estate."  But  the  wardship  of  an 
heir  who  held  in  socage  belonged  to  the  nearest  relative  to  whom 
the  inheritance  of  the  ward's  lands  could  not  descend,  and  the 
guardian  was  accountable  to  the  ward  for  the  profits  received  by 
him.^'  To  wardship  was  added  the  power  to  dispose  of  the  ward 
in  marriage,  or,  at  least,  to  propose  a  match  for  the  ward.  If  the 
ward  refused  the  match,  the  guardian  could  claim  a  fine,  as  he 
could,  also,  if  the  ward  married  without  his  consent.*' 

Same — Escheat  cmd  Forfeihere. 

On  failure  of  the  heirs  of  the  tenant,  or  for  his  felony,  the  land 
escheated  to  the  lord,  and  it  was  liable  to  forfeiture  to  the  king  for 
treason.*^ 

Stat/uie  of  Quia  Em/ptores. 

Prior  to  1289  a  tenant  of  lands  could  grant  a  part  of  them,  to  be 
held  under  him  by  feudal  services.  His  tenant,  thus  created,  could 
do  the  same.  This  process  was  called  "subinfeudation."  In  the 
year  mentioned  the  statute  of  quia  emptores  "  was  passed.  It 
prohibited  subinfeudation,  and  enacted  that  the  grantee  should 
hold  immediately  of  the  superior  lord  and  not  of  the  grantor. 
After  this  statnte  a  conveyance  passed  all  the  grantor's  interest 
to  the  grantee,  and  the  grantor  dropped  out  of  the  feudal  chain 
between  the  tenant  in  possession  of  the  land  and  the  lord  para- 

iT  1  Pol.  &  M.  Hist.  Eng.  Law,  288;  Dig.  Hist  Real  Prop.  (4th  EM.)  40,  48, 
SO,  120;   2  BL  Comm,  65,  87;  Co.  Lltt.  7Ga,  S3a. 

IS  1  PoL  &  M.  Hist  Eng.  Law,  299;  Dig.  Hist  Real  Prop.  (4tli  Ed.)  41.  86, 
136;   2  BL  Comm.  67. 

i»  1  PoL  &  M.  Hist  Eng,  Law,  303;  Dig.  Hist  Real  Prop.  (4tli  Ed.)  48;  2 
BL  Comm.  87. 

10  1  Pol.  &  SL  Hist  Eng.  Law,  299;  Dig.  Hist  Real  Prop.  41,  90,  123;  2 
BL  Comm.  70.  Socage  tenure  gave  no  right  to  the  ward's  marriage.  2  BL 
Comm.  88;    Dig.  Hist  Real  Prop.  (4th  Ed.)  48. 

21  1  PoL  &  M.  Hist.  Eng.  Law,  332;  2  Pol.  &  M.  Hist  Eng.  Law,  22,  464, 
498;   Dig.  Hist  Real  Prop.  (4th  Ed.)  43,  61,  91,  422;   2  BL  Comm.  72,  89. 

«2  IS  Edw.  L  C  L 


§    10)  SEISIN. 


31 


mount,  and  had  no  farther  connection  with  the  land  granted.     No 
new  tenure  in  fee  could  be  created."     This  statute  is  in  force  in  all 
the  United  States  where  tenure  still  exists,"  except  Pennsylvania 
and  South  Carolina." 
Tenure  in  the   United  States. 

The  feudal  system  never  took  root  in  the  United  States,  and 
what  tenures  there  were  in  the  early  holdings  of  land  were  by  free 
and  common  socage,  and  not  subject  to  the  burdensome  incidents 
of  tenure  which  have  been  enumerated.**  In  many  states  feudal 
tenures  are  abolished.*^  Lands  are  in  these  states  allodial;  that 
is,  held  in  absolute  ownership,  the  same  as  personal  property.*' 
In  other  states  where  tenure  still  exists,  lands  cannot  be  holden  in 
fee  of  another  person,  because  of  the  statute  of  quia  emptores,  as 
was  seen  in  the  last  paragraph.  Other  forms  of  tenure  which  do 
exist  to-day,  such  as  the  tenure  between  landlord  and  tenant,  or 
between  tenant  for  life  and  reversioner  or  remainder-man,  will  be 
considered  hereafter.** 

SEISIN. 

10.  Seisin  is  the  possession  of  land  with  an  intent  on  the 
part  of  the  one  holding  it  to  claim  a  freehold  inter- 
est.*'   It  may  be  either; 

(a)  Seisin  in  fact,  or 

(b)  Seisin  in  law. 

M  Gray,  Perp.  12;  Dig.  Hist  Real  Prvp,  (4th  Ed.)  232;  Van  Rensselaer  v. 
r>ATinisnTi,  35  N.  Y.  393.    Of.  Van  Rensselaer  v.  Smith,  27  Barb.  104. 

«4  Gray,  Perp.  16;  Denio,  J.,  in  Van  Rensselaer  v.  Hays,  19  N,  Y.  68,  75. 

25  Gray,  Perp.  pp.  17,  18;  Ingersoll  v.  Sergeant,  1  Whart.  337.  Of.  Wallace 
T.  Harmstad,  44  Pa,  St  492,  The  charter  of  North  Carolina  permitted  sub- 
infeudation, 

29  Chisholm  v.  Georgia,  2  DaU.  419;  Cornell  v.  Lamb,  2  Cow.  652;  Combs 
T.  Jackson,  2  Wend,  153;  In  re  Desilver's  Estate,  5  Rawle,  111,  Cf.  Martin 
v,  Waddell,  16  Pet  367;  Johnson  v.  Mcintosh,  8  Wheat  543. 

»7 1  stim.  Am.  St  Law,  §§  400,  401,  1100-1103;  Gray,  Perp.  13;  Matthews  v. 
Ward,  10  Gill  &  J.  443,  451. 

88  McLean,  J.,  in  Mayor,  etc,  of  New  Orleans  v.  U.  S.,  10  Pet  716;  Cook  v. 
Hammond,  4  Mason,  467,  478,  Fed,  Cas.  No.  3,159;  Minneapolis  Mill  Co.  v. 
Tiffany,  22  Minn,  4G3.  Cf.  Taylor  v.  Porter,  4  HiU,  140;  Com.  v.  Tewk&bury, 
11  Mete  (Mass.)  55;  Bancroft  v.  City  of  Cambridge,  126  Ma^s.  43& 

2  9  See  post  pp.  142,  303. 

80  Towle  V.  Ayer,  8  N.  H.  57. 


32  TENURE    AND   SEISIN.  (Ch.   2 

By  the  early  common  law  seisin  signified  the  investing  of  a  ten- 
ant with  the  legal  right  to  his  estate,  and  was  properly  used  only 
in  connection  with  freeholds.*^  Seisin  is  now  often  used  as  the 
equivalent  of  possession."  Seisin  in  fact  is  actual  possession. 
Seisin  in  law  is  constructive  possession."  The  theory  of  the  com- 
mon law  is  that  there  must  always  be  some  one  seised  of  the  free- 
hold. The  early  form  of  conveyance  was  by  a  transfer  of  the 
seisin.**  Applications  of  the  theory  of  seisin  will  be  made  in 
other  places. 

«i  Post,  p.  34.  Van  Rensselaer  v.  Poncher,  5  Denlo  (N.  Y.)  35;  Sneed,  J., 
In  Upchurch  T.  Anderson,  3  Bait  (Tenn.)  411;  Peters,  C  J.,  in  Ford  v.  Gar- 
ner's Adm'r,  49  Ala.  603. 

«»  See  Wilde^  J.,  in  Slater  y.  Eawson,  6  Mete  (Mass.)  439. 

»«  Allen,  J.,  in  Jenkins  r.  Faliey,  73  N.  Y.  3G2;  Olin,  J^  m  Hart  r.  Dean, 
2  McArthur,  63. 

s*  h'oo  post,  p.  403. 


I   12)  ESTATES   AS   TO   QUANTITY FEB   BIMPLB.  33 

CHAPTER  m. 

ESTATES  AS  TO  QUANTITY— FEB  SIMPLA. 

11.  Estate  Defined. 

12.  Classification  of  EJstatea. 

13.  Quantity  of  E.states. 

4-15.    Freehold— Estates  of  Luheritaiioai 

16.  Fee  Simple, 

17.  Creation. 

18.  Right  of  User, 

19.  Alienation. 

ESTATE  DEFINED. 

11.  The  Interest  wliich  a  person  has   in   real  property  is 

called  an  "estate." 

The  term  "estate,"  in  its  technical  sense,  is  nsed  only  in  conne«- 
tion  with  real  property.  There  can  properly  be  no  estates  in  per 
sonalty.  "Estate"  merely  siarnifies  the  interest  which  the  tenant 
has  in  the  land  he  holds.  This  interest  may  be  as  absolute  as  the 
ownership  of  personalty,  or  it  may  be  for  a  limited  time,  or  qual- 
ified by  conditions.  Under  the  feudal  system  only  the  king  could 
have  absolute  ownership  of  land,  since  all  others  held  their  land 
under  him.  The  technical  use  of  the  word  "estate"  is  to  be  dis 
tingnished  from  "estate"  as  meaning  things  owned, ^  or  the  ag- 
gregate of  a  man's  property  as  an  entity, — for  example,  a  "de 
cedent's  estate.'* 

CLASSIFICATION  OF  ESTATES. 

12.  Estates  will  be  discussed: 

(a)  As  to  quantity  (p.  34). 

(b)  As  to  quality  (p.  169). 

(c)  As  to  legal  or  equitable  character  (p.  251). 

(d)  As  to  time  of  enjoyment  (p.  278). 

(e)  As  to  number  of  owners  (p.  332). 

»  See  Appleton,  C.  J.,  In  Deering  v.  Tucker,  55  Me.  284, 

&EAL  PROP. — 3 


8i  ESTATES    AS   TO    QUANTITY FEB   SIMPLS.  (Ch.   3 


QUANTITY  OF  ESTATES. 

13.  The  quantity  of  an  estate  signifies  its  duration-     As  to 

quantity  estates  are: 

(a)  Freeholds,  which  are: 

(1)  Of  inheritance,  comprising: 

I.  Fee  simple  (p.  35). 
n.  Fee  tail  (p.  42). 

(2)  Not  of  inheritance,  or  life  estates  (p.  55). 

(b)  Less  than  freehold,  which  are; 

(1)  For  years  (p.  128). 

(2)  At  will  (p.  1")5). 

(3)  From  year  to  year  (p.  158). 

(4)  At  sufferance  (p.  163). 

The  quantity  of  an  estate  means  almost  the  same  thing  as  the 
length  of  time  during  which  the  owner  of  the  estate  is  entitled  to 
the  use  of  the  land.'  For  example,  a  life  estate  gives  its  owner 
an  interest  as  long  as  he  lives.  The  estate  greatest  in  quantity  is 
the  fee  simple.  Quantity  does  not,  however,  mean  the  absolute 
number  of  years  that  an  estate  is  to  continue.  A  leasehold  for  2 
years  is  an  estate  of  the  same  quantity  as  one  for  15  years,  to  wit, 
an  estate  for  years. 

FEEEHOLD— ESTATES  OP  INHERITANCE. 

14.  A  freehold  estate  is  one  which  may  last  during  a  life, 

and  w^hose  duration  is  uncertain,  but  is  not  depend- 
ent on  the  will  of  another.' 

2  See  Sedgwick,  J.,  In  Cutts  v.  Ckjm.,  2  Mass.  284. 

8  2  BL  Comm.  704;  Hanna,  J.,  in  Bradford  v.  State,  15  Ind.  353;  People  v. 
Board  of  Education  of  Grand  Rapids,  38  Mich.  95;  Wyatt  v.  Irrigation  Co^ 
18  Colo.  298,  33  Pac  144.  For  questions  of  freehold,  as  determining  the  Jo- 
risdiction  of  a  court,  see  Wilson  v.  Dresser,  152  IIL  387,  38  N.  E.  888;  Van 
Meter  v.  Thomas,  153  lU.  65,  38  N.  E.  1036;  Hupp  v.  Hupp,  153  IIL  490,  39 
N.  E.  124;  Howe  v.  Warren,  154  IIL  227,  40  N.  E.  472;  Moshier  T.  Reynolds, 
155  nL  72,  39  N.  K  621. 


§    16)  FEE   SIMPLE.  35 

15.  An  estate  of  inheritance  is  a   freehold  -which,  on  the 

death  of  the  o-wner  intestate,  descends  to  his  heirs.* 

In  some  states  long  terms  of  years  are  by  statute  declared  to  be 
freeholds,"*  and  in  others  estates  for  the  life  of  another  •  are  de- 
clared to  be  estates  of  inheritance.''  Estates  less  than  freehold 
are  chattel  interests  in  lands,  and  go  to  the  personal  representa- 
tive of  the  deceased  owner,  unless  he  has  otherwise  disposed  of 
them  by  will, 

PEE  SIMPLE. 

16.  A  fee  simple  is  a  freehold  estate  in  perpetuity.     It  is 

an  estate  limited  to  a  man  and  his  heirs,  and  is  the 
largest  possible  estate  in  land. 

**The  word  'fee'  originally  signified  land  holden  of  a  superior,  as 
distinguished  from  allodial  land;  'fee'  and  'feud'  being  synony- 
mous. But  'fee'  is  now  employed  to  denote  the  quantity  of  inter- 
est the  tenant  has  in  land,  and  is  confined  to  estates  of  inheritance, 
i.  e.  those  which  may  descend  to  a  man's  heirs.  When  the  word 
'fee'  is  used  alone,  it  means  'fee  simple.'  "*  A  fee  simple  *  is  a  free- 
hold estate  in  perpetuity.'  It  may  exist  in  incorporeal  as  well  as 
in  corporeal  hereditaments.^"  A  fee  simple  is  practically  equal  to 
absolute  ownership,  if,  indeed,  it  is  not  so,  in  theory,  in  most  of 
the  states.  Under  the  feudal  system,  no  one  except  the  sovereign 
held  a  fee  simple.  Grants  were  made  to  tenants  to  hold  in  de- 
mesne as  of  a  fee,  but  this  was  not  the  absolute  fee  simple  of 

*  2  BL  Comm.  201. 

B  1  Stim.  Am.  St.  Law,  §  1310. 
«  Post,  p.  67. 

7  1  Stim.  Am.  St  Law,  §  1310. 

*  Graves,  Real  Prop.  §  44. 

8  "Fee  simple"  means  the  same  as  "fee  simple  absolnte,'*  and  generally 
"fee"  alone  is  a  suflScient  designation.  2  BL  Comm.  106;  Ckx  Lltt.  lb;  Clark 
V.  Baker,  14  CaL  612,  631;  Thompson,  C.  J.,  in  Jackson  v.  Van  Zandt,  12  Johns, 
(N.  Y.)  169. 

9  2  BL  Comm.  106.  An  estate  in  fee  simple  may  be  subject  to  some  condi- 
tion or  qualification  which  will  put  an  end  to  it,  in  which  case  it  is  called  a 
base  or  determinable  fee.    See  post,  p.  178. 

10  2  BL  Comm.  106. 


36  ESTATES    A3    TO    QUANTITY FEE   SIMPLE.  (Ch.   3 

to-day.  An  interest  in  the  land  still  remained  in  tlie  g^ntor  or 
feudal  lord,  represented  by  his  rij^ht  to  the  feudal  services  due 
from  the  tenant.  The  fee  simple  un<;ht  well  be  called  our  normal 
estate.  It  represents  the  whole  ownership  of  the  land.  Out  of 
the  fee  simple  all  other  estates  are  carved.  The  powers  incident 
to  estates  less  than  fee  simple  are  in  all  cases  less  than  those  of 
the  owner  of  that  estate. 

SAME— CREATION. 

17.  For  the  creation  of  a  fee  simple, 

(a)  By  deed,  the  w^ord  "heirs"  must  be  used,  except, — 
EXCEPTIONS— (1)  In  quitclaim  deeds. 

(2)  In  many  states,  by  statute. 

(b)  By  devise,  the  intention  of  the  testator  governs,  and 

no  technical  ^vords  of  limitation  are  necessary.  In 
many  states,  by  statute,  a  fee  simple  is  presumed 
to  be  intended  if  not  otherwise  expressed. 

Oreation  hy  Deed. 

In  the  creation  of  an  estate  in  fee  simple  by  deed  ^*  there  is  a 
technical  rule  of  the  common  law  that  the  limitation,  as  it  is  called, 
must  be  to  one  "and  his  heirs";  otherwise,  the  grantee  will  take 
only  a  life  estate.^^  And  no  other  words  are  sufiScient,  even 
though  the  meaning  be  the  same  and  the  intention  clear.^^  In 
granting  a  fee  simple  to  a  corporation  sole,  "successors"  is  the 

11  For  the  limitation  of  a  fee  to  a  trustee,  see  North  v.  Philbrook,  34  Me. 
532;   Ewing  v.  Shannahan,  113  Mo.  188,  20  S.  W.  1065. 

12  Adams  v.  Ro«s,  30  N.  J.  Law,  505;  Ed  wards  ville  R.  Ck).  v.  Sawyer,  92 
IIL  377;  Stell  v.  Barham,  87  N.  C.  62;  Batcholor  v.  Whitaker,  88  N.  C.  3.^0; 
Buffuui  V.  Hutchinson,  1  Allen  (Mass.)  58;  Jordan  v.  McClure,  85  Pa.  St.  495; 
Arms  V.  Burt,  1  Vt  303.    Contra,  Cole  v.  Lake  Co.,  54  N.  H.  242. 

18  For  instance,  a  life  estate  only  was  held  to  pass  by  the  words  "successors 
and  a.'^sijms  forever,"  Sedgwick  v.  Laflin,  10  Allen  (Mass.)  430;  "executors, 
administrators,  and  assigns,"  Clearwater  v.  Rose,  1  Blackf.  (Ind.)  137;  "and 
his  generation  so  long  as  the  waters  of  the  Delaware  run,"  Foster  v.  Joice,  3 
Wash.  C.  C.  498,  Fed.  Cas,  No.  4,974.  But  see  EJvans  v.  Brady,  79  Md.  142 
28  Atl.  1061;  Engel  v.  Ayer,  85  Me.  448,  27  Atl.  352;  Adams  v.  Ross,  30  N.  J, 
Law,  505. 


I    17)  CBEATIPN.  37 

proper  word  to  use,"  bot  in  the  case  of  a  corporation  a?:jrregate 
no  words  of  limitation  are  necessary."  The  technical  words  are 
not  required  in  a  strict  quitclaim  deed.  Thus,  when  one  joint  ten- 
ant or  a  coparcener  ^*  releases  his  interest  to  his  co-tenant,  no 
words  of  inheritance,  as  it  is  called,  are  necessary  to  pass  a  fee.^' 
But  the  rule  is  otherwise  in  the  case  of  a  conveyance  by  a  tenant 
in  common  ^*  to  a  co-tenant,"  or  where  the  reversion  is  released 
to  the  tenant  for  life.^°  In  the  case  of  a  conveyance  in  which  ref- 
erence is  made  to  another  instrument,  if  the  necessary  words  of 
inheritance  are  used  in  the  instrument  referred  to,  their  absence 
from  the  other  will  not  prevent  a  fee  simple  passing.*^  When  a  fee 
simple  was  intended  to  be  conveyed,  but  adequate  words  were  not 
employed,  the  deed  may  be  reformed  in  equity,  and  made  to  ex- 
press the  intention  of  the  parties.^^  This  rule  requiring  the  word 
''heirs"  to  be  used  has  in  many  states  been  changed  by  statute, 
80  that  other  expressions  are  adequate  to  convey  a  fee  simple; 

"  Shaw,  C.  J.,  In  Overseers  of  Poor  of  City  of  Boston  v.  Sears,  22  Pick. 
(Mass.)  126;   Olcott  v.  Gabert,  86  Tex.  121,  23  S.  W.  985. 

i»  Congregational  Soc  of  HaUfax  v.  Stark,  34  Vt  243;  Wilcox  v.  Wheeler, 
47  N.  H.  488.  And  see  Beach  v.  Haynes,  12  Vt.  15;  WUkes-Barre  v.  Wyoming 
Historical  &  Geological  Soc,  134  Pa.  St  616,  19  AtL  809.  Where  land  in  set- 
tled upon  or  devised  to  a  charity,  it  may  happen  that,  when  the  corpora- 
tion managing  the  charity  comes  to  an  end,  and  the  charity  itself  beeoraegi 
impracticable,  the  land  will  retam  to  the  donor's  heirs.  Stanley  v.  Colt,  5 
Wall.  119.  And  see  1  BL  Comm.  484.  Rutherford  v.  Greene's  Heirs,  2 
Wheat  196,  and  Proprietors  of  Enfield  v.  Permit,  5  N.  H.  280,  are  often  cited 
to  the  effect  that  technical  words  of  limitation  are  not  necessary  to  pass  a 
fee  in  the  case  of  legislative  grants,  but  they  do  not  support  the  proposition. 

18  See  post,  pp.  333,  336. 

17  Scott  Jm  ia  Rector  v.  Waugh,  17  Mo.  13,  2a 

18  See  post,  p.  335. 

i»  Rector  v.  Waugh,  17  Mo.  13. 

29  1  Washb.  Real  Prop.  (5th  Ed.)  90. 

«i  Lemon  v.  Graham,  131  Pa.  St  447,  19  AtL  48;  Merder  v.  Railway  Co., 
54  Mo.  506.  But  see  Lytle  v.  Lytle,  10  Watts,  259;  Reaume  v.  Chambers,  22 
Mo.  86. 

*2  See  Fetter,  Eq.  p.  314;  Vickers  v.  Leigh,  104  N.  a  248,  10  S.  E.  30&  Ct 
Swing  V.  Shannahan,  113  Mo.  188,  20  S.  W.  1066;  Deifraunce  v.  Brooks,  8 
Watts  &  S.  (Pa,)  67. 


33  ESTATES    AS    TO    QUANTITY FEE    SIMPLE.  (Ch.   3 

and  in  some  states  it  is  to  be  presumed  that  a  fee  simple  was  in- 
tended unless  the  contrary  appears," 

Creation  hy  Devise. 

The  strictness  of  the  common-law  rule  is  relaxed  in  the  case 
of  limitations  in  wills,  and  the  intention  of  the  testator  governs, 
80  that  he  can  devise  a  fee  simple  without  using  the  word  "heirs," 
if  the  expression  employed  shows  that  a  fee  simple  is  intended.** 
In  many  states  there  is  now  by  statute  a  presumption  that  a  fee 
simple  is  devised  if  no  other  intention  appears.^*  That  the  testa- 
tor meant  to  give  a  fee  simple  may  be  implied  from  a  charge  im- 
posed on  the  devisee;  for  it  is  said,  if  he  was  required  to  pay  out 
money,  and  received  only  a  life  estate,  he  might  die  before  being 
reimbursed  from  the  land.**  If,  however,  the  charge  is  imposed 
on  the  land,  instead  of  on  the  devisee  personally,  the  presumption 

»s  1  Stim.  Am.  St  Law,  §  1474;  1  Share.  &  B.  Lead.  Gas.  Real  Prop.  56.  renn- 
sylvania.  New  Jersey,  Delaware,  South  Carolina,  Florida,  Ohio,  and  Wyo- 
ming have  not  dispensed  with  words  of  inheritance  in  deeds.  1  Dembitz, 
T.and  Tit  99. 

«*  FergTison  v.  Thomason,  87  Ky.  579,  9  S.  W.  714;  Lofton  v.  Mnrchison,  80 
Ga.  391,  7  S.  R  322;  Howze  v.  Barber,  29  S.  C.  4G6,  7  S.  E.  817;  Webster's 
Trustee  v.  Webster  (Ky.)  22  S.  W.  920;  Lockett  v.  Locliett  94  Ky.  289,  22 
S.  W.  224;  Mitchell  v.  CampbeU,  M  Ky.  347,  22  S.  W.  549;  Thomson  v.  Peake, 
38  S.  C.  440,  17  S.  K  45,  725;  Boutelle  v.  Bank,  17  R.  I.  7S1,  24  AtL  838;  Camp- 
bell V.  Carson,  12  Serg.  &  R,  (Pa.)  54;  In  re  Green's  Estate,  140  Pa.  St  253, 
21  Atl.  317;  Armstrong  v.  Michener,  160  Pa.  St  21,  28  Atl.  447;  ilills  v.  Frank- 
lin, 128  Ind.  444,  28  N.  E.  60;  Bridgewater  v.  Bolton,  6  Md.  lOG;  Baker  v. 
Bridge,  12  Pick.  (Mass.)  27;  Merritt  v.  Disney,  48  Md.  344;  Dilworth  v.  Gusky, 
131  Pa.  St  343,  IS  All.  899;  Doe  d.  Hitch  v.  Patten  (Del  Err.  &  App.)  16  Atl. 
558.  In  a  devise  it  has  been  held  that  a  fee  simple  passed  by  the  words  "all 
my  right"  or  "property."  Newkerk  v.  Newkerk,  2  Gaines  (N.  Y.)  345;  .Jackson 
y.  nousel,  17  Johns.  (N.  Y.)  281.  Contra,  Doe  v.  Allen,  8  Term.  R.  497.  .  "AU 
my  estate"  (by  one  owning  a  fee  simple),  Godfrey  v.  Humphrey,  18  Pick. 
(Mass.)  537.  To  A-  "or  his  heirs,"  Wright  v.  Wright,  1  Ves.  Sr.  409.  To  A. 
"forever,"  Heath  v.  Heath,  1  Brown,  Ch.  147.  But  see  Vernon  v.  Wright,  28 
I^w  J,  Ch.  198,  204,  207;  Davie  v.  Stevens,  1  Doug.  321.  And  cf.  Clayton  v. 
Clayton,  3  Bin.  (Pa.)  476. 

»6  1  stim.  Am.  St  Law,  §  1474;   1  Shars.  &  B.  Lead.  Gas.  Real  Prop.  70. 

i«  Doe  V.  Richards,  3  Term  R.  356;  Jackson  v.  Merrill,  6  Johns.  (N.  Y.)  185; 
Llthgow  V.  Kavenagh,  9  Mass.  161;  Wait  v.  Belding,  24  Pick.  (Mass.)  129; 
Blinston  v.  Warburton,  2  Kay  &  J.  400;  Pickwell  v.  Spencer,  L.  R.  6  Exch. 
19a 


39 

r    JON  ALIENATION. 

does  not  obtain."  A  fee  simple  may  be  presumed  from  the  nature 
of  the  land  devised,  if  no  other  estate  would  be  of  any  value  to  the 
devisee;  for  instance,  in  a  devise  of  wild  lands,  which  would  be 
of  no  value  unless  the  timber  could  be  cut,  and  a  tenant  for  life 
would  have  no  such  right.*' 

SAME— RIGHT  OP  USER. 

18    The  owner  of  a  fee  simple  may  use  his  land  in  any 
way  he  pleases,  provided  he  does  not  cause  injury 
to  others. 
One  who  has  a  fee  simple  estate  in  land  possesses  an  indefinite 
ri-ht  of  user,  so  that  he  may  commit  unlimited  waste,  such  as 
opening  mines,  cutting  down  trees,  destroying  buildings  and  other 
structures,    or   removing    real    fixtures."     This   is   not   technical 
waste     In  connection  with  other  estates,  it  will  be  seen  that  these 
acts  are  wrongful,  and  are  called  "waste";   but  when  done  by  an 
owner  in  fee  simple  they  are  lawful.     There  is  the  one  restriction 
on  his  right  of  user,  namely,  that  he  must  not  cause  injury  to  others 
by  the  use  to  which  he  puts  his  land,  or,  in  other  words,  he  must 
not  maintain  a  nuisance  on  his  premises." 

SAME— ALIEWATIOW. 
19.  A  fee  simple  estate  is  subject  to  aUenation,  which  may 

be: 

(a)  Voluntary,  which  is: 

(1)  Inter  vivos,  or 

(2)  By  will. 

(b)  Involuntary,  which  is  either: 

(1)  For  debts  or  taxes,  or 

(2)  Under  the  power  of  eminent  domain. 

.T  Jackson  Y.  BuU.  10  Johns.  (N.  Y.)  148;  McLeUan  v.  Tnmer  15  Me.  438; 
Doe  V.  Barter.  7  Blackf.  (Ind.)  488;  Punk  v.  Eggleston,  92  IlL  515.  And  see 
Spraker  v.  Van  Alstyne,  18  Wend.  (N.  Y.)  200. 

»8  Sargent  v.  Towne,  10  Mass.  303. 

t^  2  BL  Comm.  282.  But  see  the  Case  of  Mines,  1  Plow.  310.  336;  Com.  t. 
Tewksbury,  11  Mete  (Mass.)  55. 

»o  2  Jag.  Torts,  p.  748;  1  Wood,  Nuis.  (3d  Ed.)  127. 


40  E.STATE3    AS    TO    QUAJITITY ^FKJE   SDfFLS.  (Ch.   3 

Vohintary  Alienation. 

One  of  the  principal  incidents  of  a  fee  simple  is  the  right  of  the 
owner  to  dispose  of  it,  and  in  this  way  exert  a  control  over  his 
land  even  after  death.  Subject  to  certain  disabilities  of  the  person, 
to  be  noticed  hereafter,*^  the  owner  of  a  fee  simple  can  now  •* 
alien  his  estate  by  deed  or  by  will  very  mnch  as  he  pleases,  pro- 
vided he  complies  with  the  formalities  of  conveyancing  required 
by  law.  There  are,  however,  certain  exceptions  to  this  power. 
For  instance,  an  owner  of  land,  though  he  holds  it  in  fee  simple, 
cannot  create  estates  and  forms  of  tenure  unknown  to  the  law, 
or  which  are  prohibited  by  law."  Within  this  principle  comes  the 
rule  against  perpetuities,  to  be  discussed  hereafter,**  which  pre- 
vents the  creation  of  estates  to  take  effect  at  a  remote  time  in  the 
future.  Moreover,  an  owner  of  land  is  not  permitted  to  convey 
to  others,  and  at  the  same  time  forbid  them  to  dispose  of  it,  for 
the  law  allows  only  very  limited  restraints  to  be  imposed  on  alien- 
ation."* In  some  states  there  is  a  limitation  on  the  amount  of 
land  which  a  man  can  give  by  will  for  charitable  purposes."  Fur- 
thermore, no  one  is  allowed  to  dispose  of  his  land  in  such  a  way 
that  it  is  a  fraud  on  his  creditors;  "  and,  when  an  action  Is  pend- 
ing which  involves  the  title  to  lands,  they  cannot  be  conveyed 
away  so  as  to  prejudice  the  other  party.'*  The  most  important  ex- 
ceptions, however,  to  the  power  of  alienation,  are  those  arising 
from  the  rights  of  dower,  curtesy,  and  homestead,  which  will  be 
explained  in  subsequent  chapters. 
iTWoluntary  Alienation. 

A  fee  simple  is  also  subject  to  alienation  without  the  owner's 
consent,  for  it  may  be  taken  for  taxes,  and,  at  the  present  time,  to 

«i  rust.  p.  o81,  including  the  disabilities  of  aliens,  corporations,  etc 

«2  For  tlje  history  of  the  right  of  alienation,  see  post,  p.  390. 

•8  See  Doebler's  Appeal,  G4  Pa.  St.  9. 

«♦  Post,  p.  322. 

8B  See  post,  p.  390;  Blackstone  Bank  v.  Davis,  21  Pick.  (Mass.)  42;  Langdon 
T.  Ingram's  Guardian,  28  Ind.  360.  Restrictions  as  to  use  may  be  valid, 
Cowell  V.  Springs  Co.,  100  U.  S.  55. 

3«  1  Stim.  Am.  St.  Law,  §  2G1S;  Williams.  Real  Prop.  (17th  Am.  Ed^  p.  95, 
note. 

•  7  See  post,  p.  392. 

«•  See  post,  p.  218. 


§    19)  ALIENATION.  41 

pay  his  debts."  Land  may  also  be  taken  from  the  owner  under 
the  power  of  eminent  domain,  but  this  can  onJy  be  done  on  making 
compensation  for  the  land  so  taken.*"  Nor  is  there  any  way  In 
which  involuntary  alienation  may  be  avoided,  except  in  a  few 
states  under  the  doctrine  of  spendthrift  trusts.*^  But  an  estate 
may  be  so  limited  to  a  man  that  it  shall  determine  on  any  at- 
tempt at  alienation,  voluntary  or  involuntary,  and  so  it  will  not 
be  available  to  creditors.*^  The  restrictions  on  alienation  by  an 
owner  in  fee  simple  apply  to  lesser  estates.  If  the  owner  of  an 
estate  in  fee  simple  does  not  dispose  of  it  during  his  life.  It  de- 
scends to  his  heirs,  and  vests  in  them  without  any  act  on  their 
paxt.*' 

s»  WatMns  v.  Holman,  16  Pet  25;  Wyman  v.  Brigden,  4  Mass.  150;  Nokes 
T.  Smith,  1  Yeates  (Pa.)  238.  By  different  acts  of  congress  a  priority  is  given 
to  the  claims  of  the  United  States,  and  these  acts  are  constitutional.  D.  S. 
V.  Fisher,  2  Cranch,  358;  Harrison  v.  Sterry,  5  Craneh.  289.  Similar  statutes 
exist  in  some  states  regulating  the  order  of  preference  of  claims.  2  Werner, 
Adm'n.  772. 

40  Taylor  v.  Porter.  4  Hill  (N.  Y.)  140.    See  post,  p.  494. 

*i  Post,  p.  396.  Keyser  v.  Mitchell,  67  Pa.  SL  473;  Ashiiurst's  Appeal,  77 
Pa.  St  465;  HaUett  v.  Thompson,  5  Paise  (N.  Y.)  583;  MclJvaine  v.  Smith, 
42  Mo.  45;  I^mpert  v.  Haydel,  96  Mo.  439,  9  S.  W.  780;  Johnston  v.  Zane,  11 
Grat  (Va.)  552.     Cf.  Nichols  v.  Levy,  5  Wall.  433. 

*2  Nichols  V.  EJaton,  91  U.  S.  716;  BramhaU  v.  Ferris,  14  N.  Y.  *1:  Emery  v. 
Van  Syckel,  17  N.  J.  Eq.  564.    And  see  post,  p.  395. 

* 3  In  re  Estate  of  Donahue,  36  Cal.  329. 


12  ESTATES    AS    TO    QDAJiTlTY ESTATES    TAIL.  (Ch.  4 

CHAPTEB  IV. 

ESTATES  AS  TO  QUANTITY  (Continued)— ESTATES  TAII*. 

20.  Estates  Tall  Defined. 

21-22.  Cla.sses  of  Estates  TalL 

23.  Orljrin  of  Estates  TaiL 

24-25.  Creation  of  Estates  TaiL 

28.  Incidents  of  Estates  Tafl. 

27.  Duration  of  Estates  TaiL 

28.  Tenaxit  in  Tail  After  PossFbHlty  of  Issue  Blxtlnet. 
29-30.  Estates  Tail  in  the  United  States. 

81.    Quasi  EntalL 

ESTATES  TAIL  DEFINED. 

20.  An  estate  tail  is  an  estate  of  inheritance  which  de- 
scends only  to  the  heirs  of  the  body  of  the  donee 
or  to  some  special  class  of  such  heirs. 

Ad  estate  tail  is  a  freehold  estate  of  inheritance,  with  the  pe- 
cnliarity  that,  on  the  death  of  the  tenant,  only  the  heirs  of  his 
body,  or  some  particular  description  of  them,  can  inherit  This 
limitation  of  the  inheritance  to  the  heirs  of  one's  body,  instead 
of  to  the  general  heirs,  is  the  distinguishing  feature  of  an  estate 
tail.*  Only  heirs  in  the  direct  descending  line  can  inherit  Thus, 
a  brother  of  a  tenant  in  tail  cannot  take.*  The  one  who  makes  a 
"gift,"  as  it  is  called,  of  an  estate  tail,  is  called  the  "donor," 
and  the  one  to  whom  the  estate  is  given  is  called  the  "donee."  • 
An  estate  tail  is  a  smaller  interest  in  land  than  a  fee  simple.  If 
the  owner  of  a  fee  simple  makes  a  grant  of  an  estate  tail,  an  es- 
tate still  remains  in  him,  called  a  "reversion."  *     If  at  any  time 

1  (Joodrlght  V.  Morningstar,  1  Yeates  (Pa.)  313;  Corbln  v.  Healy,  20  Pick. 
(Mass.)  514;  Rlggs  v.  Sally,  15  Me.  408.  Ct  Reinhart  v.  Lantz,  37  Pa.  St. 
488. 

2  2  BL  Comm.  113. 
« 2  BL  Comm.  110. 

*  And  tlierefore  the  statute  of  quia  emptores  does  not  apply  to  a  fee  talL 
and  tenure  may  exist  between  donor  and  donee.  Dig.  HisL  Real  Prop.  (4th 
Bd.)  248.     And  see  post,  ,p.  280. 


§§    21-22)  CLASSES    OF   ESTATES   TAIL,  43 

there  is  a  failure  of  heirs  within  the  description  of  those,  entitled 
to  take  under  the  gift,  the  property  reverts  to  the  donor  or  his 
heirs.  Where  the  donor  of  an  estate  tail,  by  the  same  instrument 
which  creates  it,  gives  the  interest  which  remains  in  him  to  a  third 
person,  the  estate  of  such  third  person  is  called  a  "remainder."  • 

CLASSES  OF  ESTATES  TAIL. 

21.  Estates  tail  are  divided  into: 

(a)  Estates  in  general  tail,  the  donee  being  tlie  only  par- 

ent named. 

(b)  Estates  in  special  tail,  both  parents  being  named. 

22.  Estates  in  general  and  special  tail  are  further  divided 

into: 

(a)  Estates  in  tail  male,  descending  only  to  male  heirs. 

(b)  Estates  in  tail  female,   descending  only   to    female 

heirs. 

Where  the  estate  is  limited  simply  to  the  heirs  of  the  donee's 
body,  without  further  particularity  of  description,  the  estate  is  an 
estate  in  general  tail.  In  such  case,  any  of  the  issue  of  the  donee's 
body  can  inherit.'  The  inheritance,  however,  may  be  restricted  to 
the  heirs  of  the  body  of  the  donee  and  another  person  named,  as 
"to  A.  and  his  heirs  begotten  on  the  body  of  his  wife,  B."  ^  Or 
the  limitation  may  be  to  two  donees  and  the  heirs  of  their  two 
bodies.  These  cases,  where  both  parents  of  the  heirs  who  are  to 
take  are  named,  are  called  estates  in  special  tail.*  Such  limita- 
tions are  valid  if  the  persons  named  are  husband  and  wife,  or  if 
there  is  a  possibility  of  their  becoming  lawfully  married,'  no  mat- 
ter how  improbable  it  is  that  they  ever  will  be.^*  But,  if  the  es- 
tate is  given  to  a  man  and  his  heirs  by  a  woman  whom  he  cannot 

t>  See  post,  iJ.  1182, 

•  Co.  Lit±.  §§  14,  15;  2  BL  Comm.  113. 
T2  BL  Comm.  114. 
«  Co.  Litt  §  16. 
»Co.  Litt  §  16. 

10  But  a  contrary  presnmptlon  may  arise,  as  In  case  of  two  donees  who  haT« 
already  been  married  and  divorced.     Ca  Ldtt  25b,  note  2. 


44  ESTATIia    A3    TO    QUANTITY ESTATES    TAIU  (Cll.   4 

marry  because  she  is  witliin  a  prohibited  de^rree  of  consanguinity^ 
the  limitation  to  the  heii-s  is  void,  and  the  donee  will  take  only 
a  life  estate,  the  reversion  remaining  in  the  donor.^^  But  a  limi- 
tation in  tail  to  two  donees  who  are  each  married  to  other  per 
sons  is  good,  since  they  may  become  free,  by  reason  of  death  or 
divorce,  to  marry  each  otlier.^^  Whenever  there  can  be  no  issue 
who  can  take  the  estate  according  to  the  form  of  the  gift, — for 
exam|)Ie,  because  of  the  death  of  the  wife  named  prior  to  the  gift, 
—then  the  donee  will  take  only  a  life  estate."  The  inheritance 
of  an  estate  in  general  or  special  tail  may  be  further  restricted  to 
the  males  or  females  of  the  class  of  heirs  designated.  Examples 
of  such  estates  are  "to  A.  and  the  heirs  male  of  his  body,^*  and"  to 
A.  and  his  heirs  male  on  the  body  of  his  wife,  B.,  begotten."  Es- 
tates tail  female  are  very  rare.  No  one  can  inherit  an  estate  in 
tail  male  who  cannot  trace  his  descent  from  the  donee  through 
males  entirely.  For  this  reason  the  son  of  a  daughter  of  the  donee 
cannot  take  the  estate,  because  his  mother  could  not  have  inher- 
ited. The  same  principle  applies  in  estates  tail  female,  so  that 
only  females  and  the  female  issue  of  females  can  take.^* 

ORIGIN  OF  ESTATES  TAIL. 

23.  Estates  tail  v/ere  created  by  the  operation  of  the  stat- 
ute de  donis  conditionalibus  upon  fees  conditional 
at  common  la"w. 

In  early  feudal  times,  when  estates  first  became  hereditary,  and 
were  given  to  a  man  and  his  heirs,  the  word  "heirs"  was  considered 
to  mean  lineal  heirs, or  the  descendants  of  the  body  of  the  first  taker.^* 
The  collateral  relations,  such  as  brothers,  sisters,  and  cousins,  could 
not  take.    This  was  obviously  to  the  advantage  of  the  feudal  lord  or 

11  Co.  IJtt  §  283. 

12  Co.   IJtL  §  2o. 

IS  That  Is,  the  donee  has  an  estate  taJl  after  possibility  of  Issue  extinct. 
Post,  p.  52. 
1*  Ilulburt  V.  Emerson,  16  Mass.  241, 
"  Co.  LltL  §  25. 
!•  Co.  Litt  §§  23.  24. 
i«  Dig.  Hist  Eeal  Prop.  (4th  Ed.)  220;  Pol.  &  M.  Hist  Eng.  Law,  tL 


§    23)  ORIGIN    OF   ESTATES    TAIL.  45 

grantor;  for,  by  confining  the  inheritance  to  the  issne  of  his  tenant,  he 
was  more  likely  to  have  profitable  wardships  and  escheats  than  if  col- 
lateral kinsmen  were  admitted.  At  this  time  the  heir  derived  his 
title  to  the  estate  from  the  grantor  by  designation  in  the  grant  per 
formam  doni.  But  as  the  tenant  acquired,  in  course  of  time,  the 
power  of  alienating  the  fee,  the  interest  of  the  heir  became  reduced 
to  a  mere  expectation  of  succeeding,  in  the  event  of  his  ancestor  not 
exercising  that  power.  The  additional  grant  to  the  heirs  was  then 
referred  wholly  to  the  estate  of  the  ancestor,  as  importing  merely 
an  estate  of  inheritance,  an  essential  incident  of  which  was  the 
power  of  transferring  the  land,  and  the  heir  no  longer  claimed  as 
grantee  by  designation  in  the  grant,  but  derived  his  title  from  the 
ancestor  by  descent.^'  The  word  "heirs"  was  also  extended,  so 
as  to  include  collateral  as  well  as  lineal  heirs.^**  When  the  gran- 
tor, therefore,  wished  to  confine  the  estate  to  the  lineal  descendants 
of  the  tenant,  it  became  necessary  for  him  to  expressly  limit  it  to 
the  heirs  of  the  tenant's  body.  Estates  so  limited  were  called,  in- 
differently, "conditional  fees,"  "fees  conditional,"  and  "fees  condi- 
tional at  common  law,"  because  of  the  condition,  implied  in  the 
grant,  that  if  the  grantee  died  without  heirs  of  his  body,  or  in 
case  of  a  failure  of  such  heirs  at  any  future  time,  the  land  should 
revert  to  the  grantor.  The  grantor  had  no  reversion,  but  only  a 
possibility  of  a  reverter.  The  fee  was  still  considered  to  be  in 
the  grantee,  subject  to  be  divested  by  the  failure  of  the  condition. 
The  limitation  to  the  heirs  of  his  body  did  not  otherwise  affect 
the  rights  and  powers  of  a  tenant,  and  in  respect  of  these  it  re- 
mained a  fee  simple.  So  long  as  the  fee  lasted,  the  tenant  for  the 
time  being  had  all  such  powers,  including  the  power  of  alienation, 
as  were  the  inseparable  incidents  of  an  estate  of  inheritance.  It 
was,  however,  a  condition  necessary  to  the  full  effect  of  his  alien- 
ation, so  as  to  bar,  not  only  his  issue,  but  also  the  possibility  of 
reverting  to  the  grantor,  that  he  should  have  heritable  issue.'^ 
The  gift  to  one  and  to  the  heirs  of  his  body  was  construed,  for  the 
purpose  of  alienation,  to  be  the  same  as  a  gift  to  him  and  to  his 

i»  Leake,  Prop.  Land.  33. 
2»  Williams,   Real  Prop.   (17th  EJd.)  101. 

212  BL  Comm.  110;  1  Spence,  Eq.  Jur.  141;  Anon.,  Fitzh.  Abr.  ♦Tformedon,- 
65. 


46  ESTATES    AS    TO    QUANTITY ESTATES    TAIL.  (Ch.   4 

heirs,  if  he  had  heirs  of  his  body.  By  this  constrnetion  the  inten- 
tion of  the  grantor  in  limiting  the  estate  to  the  heirs  of  his  tenant's 
body  was  again  defeated.*'  The  birth  of  issue  was  held  to  dis- 
charge the  estate  of  the  condition,  and,  like  a  fee  simple,  the  tenant 
had  power  to  alien  or  incumber  it,  and  it  was  liable  to  forfeiture 
for  treason.  If  the  donee  aliened  the  land  before  issue  was  born, 
the  conveyance  was  effectual  against  both  the  donee  and  the  donor 
during  the  donee's  life.  If  issue  was  bom  to  the  donee  subse- 
quently to  his  conveyance,  the  grantee's  estate  became  absolute,  and 
cut  off  all  rights  of  the  issue  and  of  the  donor.* 

The  Statute  de  Donis  CondltionalUms. 

In  1285,  the  great  landowners  secured  the  passage  of  the  fa- 
mous statute  "de  donis  conditionalibus,"  *'  or,  as  it  is  often  called, 
the  Statute  of  Westminster  IL  This  act  provided  that,  "where 
any  giveth  his  land  to  any  man  and  his  wife  and  to  the  heirs  be- 
gotten of  the  bodies,  ♦  ♦  •  the  will  of  the  giver  according  to 
the  form  in  the  deed  of  gift  manifestly  expressed  shall  be  from 
henceforth  observed,  so  that  they  to  whom  the  land  was  given  un- 
der such  condition  shall  have  no  power  to  aliene  the  land  so  given, 
but  it  shall  remain  unto  the  issue  of  them  to  whom  it  was  given 
after  their  death,  or  shall  revert  unto  the  giver  or  his  heirs  if  is- 
sue fail,"  etc.  No  forfeiture  was  imposed  on  a  tenant  who  should 
alien  his  estate,  but  his  conveyance  was  of  no  effect,  after  his 
death,  against  his  heirs  or  the  donor.  The  statute,  in  taking  away 
from  the  tenant  the  power  to  alien  the  land,  deprived  his  estate  of 
that  incident  which  chiefly  characterized  it  as  a  fee  simple.^*  It 
was,  therefore,  no  longer  classed  as  a  fee  simple  conditional,  but 
it  was  recognized  to  be  a  new  kind  of  fee  or  inheritance  created 
by  the  statute,  and  thenceforth  distinctively  known  as  a  "fee  tail." 
"Wliere  an  estate  to  one  and  to  the  heirs  of  his  body  was  a  fee 
simple  before  the  statute,  now  since  the  statute  it  is  taken  that 
he  has  but  a  fee  tail,  and  this  is  included  in  the  statute  although  it 
is  not  expressed;   for  when  the  statute  restrained  the  donee  from 

22  2  Bl.  ComiTL  Ul. 

♦  1  Spence,  Eq.  Jur.  p.  141.    And  see  NeviPs  Case,  7  Coke,  33a;   Willion  r, 
Berkley,  Plow.  223;  Buckworth  y.  Tliirkell,  3  Bos.  &  P.  652,  note, 
28  13  Edw.  I.  St  1.  c.  1,  §  2. 
«*  HiU  v.  Hill,  74  Pa.  St  173. 


§§    24-25)  CREATION    OF    ESTATES    TAIL.  47 

aliening  the  fee  simple,  or  from  doing  other  acts  which  he  that 
has  a  fee  simple  may  do,  it  was  presently  taken  that  the  fee  was 
not  in  him,  for  it  would  be  idle  to  adjudge  it  in  him  when  he  could 
not  do  anything  with  it,  and  therefore  it  was  taken,  by  collection 
and  implication  of  the  act,  that  the  fee  simple  continued  in  the 
donor.  So  that  he  has  one  inheritance,  viz.  a  fee  simple,  and  the 
donee  has  another  inheritance  of  an  inferior  degree,  viz.  a  fee  tail. 
And  immediately  upon  the  making  of  the  act  it  had  this  name 
given  it."  *'  It  was  so  called  from  the  inheritance  being  cut  down 
— "talliatum" — to  the  line  of  heirs  designated.  The  name  was 
used  for  a  restricted  inheritance  before  the  statute,  but  since  the 
statute  it  is  used  distinctively  for  the  new  estate  thereby  created.^' 
After  the  statute  de  donis  the  heirs  of  the  donee  again  took  per 
formam  doni. 

CREATION  OP  ESTATES  TAIL, 

24.  For  the  creation  of  a  fee  tail  there  must  be  added  to 

the  -words  necessary  to  limit  a  fee  simple  other 
■words  -which  restrict  the  inheritance  to  the  heirs  of 
the  body  of  the  first  taker: 

25.  An  estate  tail  cannot  be  created  out  of  a  chattel  in- 

terest in  lands. 

♦ 
Lvmitation  of  Estates  Tail, 

For  the  creation  of  an  estate  tail  words  of  limitation  and  pro- 
creation are  necessary;  that  is,  not  only  is  the  word  "heirs"  re- 
quired, as  in  the  limitation  of  a  fee  simple,  but  there  must  also  be 
some  words  which  show  that  the  heirs  of  the  donee's  body,  or  some 
class  of  them,  are  to  inherit  the  estate.  If  the  words  of  limitation 
are  absent,  the  donee  takes  only  a  life  estate,^^  while  the  omission 
of  words  of  procreation  gives  the  donee  a  fee  simple.**  As  to  what 
words  are  suflBcient  to  create  an  estate  tail,  the  same  rules  apply 
as  to  a  fee  simple,  as  far  as  words  of  limitation  are  concerned  j  so 

»«  "Winion  V.  Berkley,  Plow.  251,  per  Dyer,  a  J. 
28  Leake,  Prop.  Land,  37. 

XT  Ox  Utt.  20b;   2  BL  Gomm.  U5;    Ford  t.  Johnson,  41  Ohio  St  36G.     CL 
Lehndorf  v.  Cope,  122  ILL  317,  13  N.  E.  505. 
««  2  BL  Comm,  115;   Co.  lAtL  27a;  Doe  v.  Smeddle,  2  Bam.  Sc  Aid.  126. 


48  BSTATES    AS    TO    QUANTITY ESTATES    TAIL.  (Ch.    4 

that  the  word  "heirs"  must  be  used  in  a  deed,  and  "seed,"  '^ssue," 
or  "children  of  the  body"  would  be  insufficient."  But  any  words 
which  show  that  the  word  "heirs"  is  to  be  restricted  to  the  heirs 
of  the  body  will  suffice  to  restrict  the  inheritance  to  a  fee  tail." 
In  wills  there  is  the  same  relaxation  as  in  the  creation  of  a  fee 
simple,  and  the  intention  of  the  testator  governs,  even  though  he 
does  not  use  the  technical  words  required  in  a  deed.'^  So  the 
word  "issue,"  *'  or  "children"  "  may  be  sufficient  to  create  an  es- 
tate tail,  without  using  the  word  "beirs,"  if  it  appears  from  the 
context  that  the  devisor  so  intended."  And  in  a  will  the  expres- 
sion "heirs  male"  has  been  held  to  pass  a  fee  tail,  although  it  would 
create  a  fee  simple  if  used  in  a  deed.  A  limitation  to  A.  and  to 
his  heirs  male,  or  to  A.  and  to  his  heirs  female,  creates  an  estate 
in  fee  simple,  because  it  contains  no  restriction  to  a  particular 
line  of  issue.  It  is  not  limited  by  the  gift  of  what  body  the  issue 
male  or  female  shall  be.  Inheritance  by  heirs  general  cannot  be 
restricted  to  one  sex;  therefore,  the  words  "males"  and  "females," 
having  here  no  legal  import,  are  rejected,  and  all  the  heirs,  female 
as  well  as  male,  may  inherit.  For  no  man  can  institute  a  new 
kind  of  inheritance  not  allowed  by  law."     The  intention  to  give  a 

*9  Co.  Litt  20a;    2  BL  Comm.  115. 

so  Hall  v.  Vandegrift,  3  Bin.  (Pa.)  374;  CJorbin  v,  Healy,"20  Pi(*.  (Mass.) 
514;  Pollock  v.  Speidel,  17  Ohio  St  439;  Den  v.  Lake,  24  N.  J.  Law,  686; 
Morgan  v.  Morgan,  L.  R.  10  Eq.  99;  Den  v.  Cox,  9  N.  J.  Law,  10;  Buxton  v. 
Inhabitants  of  Uxbridge,  10  Mete  (Mass.)  87;  Brown  v.  Hospital,  155  Mass. 
323,  29  N.  EL  625;  Holden  v.  Wells  (R.  L)  31  AtL  2G5. 

81  Reinoehl  v.  Shirk,  119  Pa.  St.  108,  12  Atl.  806;  Arnold  v.  Brown,  7  R. 
I.  189;  Manwaring  v.  Tabor,  1  Root  (Onn.)  79;  Clark  v.  Baker,  3  Serg.  &  R. 
(Pa.)  470;  Stone  v.  McMullen  (May  3,  1881)  10  Wkly.  Notes  Cas.  541.  But 
see  Hill  V.  Hill,  74  Pa.  St.  173.  "Heirs  lawfully  begotten"  has  been  hold.  In  a 
will,  to  mean  "begotten  by  him."  Pratt's  Lessee  v.  Flamer,  5  Har.  &  J.  (Md.) 
10. 

82  Claric  V.  Baker,  3  Serg.  &  R.  (Pa.)  470;  Taylor  v.  Taylor.  63  Pa.  St  481. 
88  Nightingale  v.  Burrell,  15  Pidc  (Mass.)  104;  Fletcher  v.  Fletcher,  88  Ind. 

418. 

34  See,  al^o,  Braden  v.  Cannon,  24  Pa,  St  168;  Ganse  v.  Wiley,  4  Serg.  & 
R.  (Pa.)  509;  Allen  v.  Markle,  36  Pa,  St  117;  Wheatland  v.  Dodge,  10  Mete. 
(Ma.ss.)  502. 

8»  Co.  Litt  13a;  Leake,  Prop.  T^nd,  171;  Den  v.  Fogg,  3  N.  J.  Law,  598; 
Allin   v.  Bunee,   1   Root  (Conn.)   96;    Welles   t.   Olcott,   Kirby    (Conn.)    118; 


I  26)  INCIDENTS    OF    ESTATES    TAIL.  49 

fee  tail  may  appear  from  a  limitation  over,  if  the  donee  "die  with- 
out heirs  of  his  body,"  or  similar  expressions.  This  is  called  an 
"estate  tail  by  construction."  '• 

Estates  Tail — In  Chattel  Interests. 

There  can  be  no  fee  tail  in  personal  property  or  in  chattel  inter- 
ests, and  an  attempt  to  so  limit  an  estate  tail  results  in  passing 
the  donor's  entire  interest* 

INCIDENTS  OP  ESTATES  TAIL. 

26.  The  rights  of  the  o-wner  of  a  fee  tail  are  the  same  as 
the  rights  of  one  o-wning  a  fee  simple,  except  as  to 
alienation. 

As  already  seen,  a  tenant  in  tail  can  convey  only  an  estate  dur- 
ing his  life;  otherwise,  the  incidents  of  estates  tail  are  tlie  same 
as  of  those  in  fee  simple.^^  The  tenant  in  tail  is  not  liable  for 
waste,"  and  is  not  bound  to  pay  off  incumbrances  or  to  keep  down 

Den  T.  Dubois,  16  N.  J.  Law,  285;  Giddings  v.  SmiUi,  15  Vt  344;  PoUock  v. 
Speidel,  17  Ohio  St  439;  4  Kent  Comm.  12;  1  Share.  &  B.  Lead.  Cas.  Real 
Prop.  94.  See  Jewell  v.  Warner,  35  N.  H.  176.  But  not  in  South  Carolina. 
MurreH  r.  Mathews,  2  Bay  (S.  C,)  397;  Wright  v.  Herron,  5  Rich.  Eq.  (S. 
C.)  441. 

«•  AUen  T.  Trustees,  102  Mass.  262;  Potts'  Appeal,  30  Pa.  St  168;  Tate 
T.  TaUy,  3  Call  (Va.)  354;  Doe  v.  Craigen,  8  Leigh  (Va.)  449;  Den  v.  Hyatt  1 
Hawks  (N.  C.)  247;  Covert  v.  Robinson,  46  Pa.  St  274;  Smith's  Appeal,  23 
Pa.  St  9;  WiUis  v.  Bueher,  3  Wash.  C.  C.  369,  Fed.  Cas.  No.  17,769;  Albee 
V.  Carpenter,  12  Cush.  (Mass.)  382;  Perry  v.  Kline,  Id.  118;  Parkman  v. 
Bowdoin,  1  Sumn.  359,  Fed.  Cas.  No.  10,763;  Brown  v.  Weaver,  28  Ga.  377; 
Child  v.  Baylie,  Cro.  Jac.  459. 

♦Stockton  V.  Mai-tin,  2  Bay  (S.  a)  471;  Albee  v.  Carpenter,  12  Cush. 
(Mass.)  382,  But  cf.  Burkhart  v.  Bncher,  2  Bin.  (Pa.)  455;  Shoemaker  v.  Huff- 
nagle,  4  Watts  &  S.  (Pa.)  437;  Duer  v.  Boyd,  1  Sei^g.  &.  R.  (Pa.)  203.  And 
see  post,  p.  53. 

37  Buxton  V.  Inhabitants  of  Uxbridge,  10  Mete.  (Mass.)  87;  Partridge  v, 
Dorsey,  3  Har.  &  J.  302. 

8  8  Hales  V.  Petit  Plow.  253;    Secheverel  v.  Dale^  Poph.  193;    Liford's  Case, 

II  Coke,  46b;  Attorney  General  v.  Marlborough,  3  Madd.  498.  But  he  cannot 
antborize  it  after  his  death.  Liford's  Case,  supra.  What  is  meant  by 
"waste"  will  be  treated  of  under  "Life  Estates,"  post,  p.  62. 

KRAIiPBOP. — 4 


60  ESTATES    AS    TO    QUANTITY ESTATES    TAIL.  (Ch.   4 

the  interest  on  them."  An  estate  tail  is  subject  to  dower  "  and 
curtesy."  But  the  doctrine  of  merger  does  not  apply  to  estates 
tail.  By  merger,  when  a  greater  and  a  lesser  estate  come  together 
in  one  person,  the  latter  is  destroyed  by  the  former,  and  the  own- 
er has  only  the  one  estate  left,  thus  sometimes  .cutting  out  rights 
which  came  between  the  two  estates.  But,  if  the  tenant  in  tail 
becomes  the  owner  of  the  reversion  or  the  remainder  in  fee,  his 
estates  do  not  consolidate  and  shut  out  the  issue  in  tail,  or  other  re- 
mainders, if  there  are  such.*' 

DURATION  OF  ESTATES  TAEL. 

27.  An  estate  tail  endures  until  the  particular  heirs  named 
in  the  gift  are  exhausted,  and  then  reverts  to  the 
donor,  unless  it  is  sooner  barred,  which  may  be: 

(a)  By  common  recovery  (obsolete>. 

(b)  By  fine  (obsolete). 

(c)  By  deed,  in  most  states. 

Ba/rring  Estates  Tail — By  Common  Recovery, 

After  the  statute  de  donis  had  been  in  force  about  200  years,** 
a  method  of  evading  it  and  of  barring  the  entail  was  devised,  called 
a  ''common  recovery."  This  consisted  of  a  collusive  suit,  brought 
by  the  intended  purchaser,  called  the  "demandant,"  under  a  claim 
of  paramount  title  against  the  tenant  in  taiL  The  latter  did  not 
defend,  but  claimed  that  his  grantor  had  warranted  the  title 
to  the  lands,  and  asked  that  he  be  called  upon  to  defend  the  suit. 
This  was  termed  'Slouching  to  warranty."**     The  vouchee,   who 

8»  Amesbniy  v.  Brown,  1  Ves.  Sr.  477;  Chaplin  r.  Chaplin,  3  P.  Wms.  235. 
But  see  Burgess  v.  Mawby,  1  Turn.  &  R.  176. 

*o  Kennedy  v.  Kennedy,  29  N.  J.  Law,  185;  Smith's  Appeal,  23  Pa.  St.  9. 
See  post,  p.  S3. 

41  Voller  V.  Carter,  4  El.  &  Bl.  173.  See  post,  p.  73.  Before  the  statute 
the  second  husband  could  have  curtesy.  Anoa.,  Fitzh.  Abr.  "Formedon,"  66. 
But  this  was  chajQg-ed  by  the  statute. 

*2  Wiscot's  Case,  2  Coke,  60a;   Challis,  Real  Prop,  c  10. 

4  3  The  house  of  lords  had  defeated  all  attempts  to  repeaJ  the  statute.  See 
Mildmay's  Case,  6  Coke,  40a;   2  BL  Comm.  116. 

44  The  proceeding  was  usually  a  more  complicated  one,  called  a  "recovery 


§    27)  DUBATION    OF    ESTATES    TAIL.  51 

was  a  mere  man  of  straw,  suffered  default  to  be  entered  against 
him,  tlms  admitting  the  warranty.  Then  the  lands  were  judged  to 
belong  to  the  demandant,  and  judgment  was  entered  against  the 
vouchee  that  he  reimburse  the  tenant  in  tail  with  lands  of  equal 
value,  according  to  the  doctrine  of  warranty.*'  The  entail  was 
held  to  attach  to  this  land,  so  the  heirs  and  remainder-men  would 
lose  nothing;  but  in  fact  the  vouchee  was  always  a  man  of  no 
means,  and  had  not  in  fact  warranted  the  estate  to  the  defendant, 
but  was  a  third  person,  called  in  to  carry  out  the  fiction,  ajid  the 
judgment  against  him  was  worthless.  The  efficacy  of  tbis  pro- 
ceeding to  bar  an  estate  tail  was  first  recognized  in  the  now  fa- 
mous Taltarum's  Case."  A  common  recovery,  being  suffered,  not 
only  cut  off  the  issue  in  tail,  but  destroyed  all  remainders  or  re- 
versions as  well,  and  thus  effectuaJly  put  an  end  to  entailed  es- 
tates.*^ That  is,  the  tenant  in  tail,  after  Taltarum's  Case,  always 
had  power  to  suffer  a  recovery,  and  no  condition  or  restriction  in. 
the  deed  of  gift  could  be  devised  which  could  prevent  it*» 
Same — By  Fine. 

Estates  tail  might  also  be  barred  by  another  Idnd  of  collusive 
action  called  a  "fine."  "  Fines  were  actions  for  the  recovery  of 
lands  on  a  claim  of  title,  which  were  compromised  by  the  parties 
with  leave  of  the  court,  and  the  judgment  record  entered  in  the 
case  became  the  record  of  title.  The  effect  of  a  fine  was  to  bar 
the  issue  in  tail,  but  not  tbe  remainder-man  or  reversioner.** 

with  a  double  voucher."    For  further  details  as  to  recoveries,  see  2  BL  Ckjinm. 
357;    Challis,  Real  Prop.  249. 

*»  As  to  the  Grigin  of  warranty,  see  Digby,  Hist  Real  Prop.  80,  note  L 

*«  Y.  B.  12  Edw.  IV.  19. 

*T  2  BL  Comm,  361.  A  recovery  could  be  suffered  only  by  one  In  possession 
as  tenant  in  tall  or  with  the  consent  of  the  person  In  possession.  1  Dembitz 
Land  Tit  116. 

*8  Mary  Portington's  Case,  10  Ck)ke,  35b;  Dewitt  v.  Eldred,  4  Watts  &  S. 
(Pa.)  415.  And  see  Waters  v.  Margenim,  60  Pa.  St  39;  Doyle  v.  Mullady,  33 
Pa.  St  264;  Elliott  v.  Peareoll,  8  Watts  &  S.  (Pa.)  38;  HaU  v.  Thayer,  5  Gray 
(Mass.)  523. 

*»  The  statute  de  donis  declared  that  fines  should  have  no  effect  on  estates 
tail,  but  this  was  changed  by  the  statutes  of  4  Hen.  VH.  c  24.  and  32  Hen. 
VIII.  c.  36. 

»»  Seymor-s  Oase.  10  Ooke.  95b.     They  would  also  be  barred  unless  they 


52  ESTATES    AS   TO   QDANTITY ^ESTATES   TAIL.  (Ch.   4 

Same—  By  Deed, 

In  many  states  it  is  now  provided  by  statute  that  estates  tail 
may  be  barred  by  deed.* 

TENANT  IN  TAIL  AFTER  POSSIBILITY  OF  ISSUE  EXTINCT. 

28.  When  there  is  a  tenant  in  special  tail,  and  it  has  be- 
come impossible  for  him  to  have  issue  who  can  in- 
herit under  the  entail,  he  is  called  "tenant  in  tail 
after  possibility  of  issue  extinct." 

If  one  is  tenant  in  tail,  and  it  has  become  impossible  that  there 
shall  be  issue  who  can  inherit,  he  is  called  "tenant  in  tail  after 
possibility  of  issue  extinct."  This  condition  can  only  arise  in  es- 
tates in  special  tail,  as  where  the  limitation  is  to  "A.  and  his  heirs 
begotten  on  the  body  of  his  wife,  B.,"  and  B.  dies  without  issue." 
The  presumption  that  the  possibility  of  issue  is  extinct  never  arises 
from  the  great  age  of  the  parties,  and  so  there  can  never  be  a 
tenant  in  tail  after  possibility  of  issue  extinct  in  case  of  an  estate 
in  general  tail."  The  position  of  a  tenant  in  tail  after  possibility 
of  issue  extinct  is  in  some  respects  different  from  that  of  a  tenant 
in  tail.  lie  cannot  bar  the  entail,  but  the  doctrine  of  merger  ap- 
plies."    Such  a  tenant  is  not  punishable  for  waste,' 


64 


ESTATES  TAIL  IN  THE  UNITED  STATES. 

29.  In  many  states  estates  taO.  have  been   abolished   by 

statutes,  which  have  turned  them  into  either 

(a)  Estates  in  fee  simple,  or 

(b)  Life   estates,  with  remainders  to  the   donee's  heii's 

who  w^ould  take  under  the  entail. 

30.  In    some    states    estates    tail    still    exist,  but   may  be 

barred  by  deed. 

made  claim  within  a  period  fixed  by  statute.     Further  formalities  were  after- 
wards required  called  "proclamations."    2  BL  Comm.  348;  1  Shep.  Touch,  c.  2. 
•  See  post,  §  30. 

61  Co.  Lltt  §§  32-34;    2  BL  Comm.  124. 

62  2  BL  Comm.  125. 
•«  Co.  Litt  2Sa. 

64  Co.  Litt.  27b. 


§    31)  QUASI   ENTAIL.  53 

Estates  tail,  as  created  by  the  statute  de  donis,  were  generally 
recognized  in  the  original  states  of  this  country."  But  great 
changes  have  been  made  by  statute.  In  some  of  our  states  estates 
tail  have  been  abolished,  and  a  conveyance  attempting  to  limit  an 
estate  tail  would  create  a  fee  simple  in  the  donee  who  would  be 
first  entitled  to  the  estate  under  the  form  of  the  gift."  In  others 
the  first  taker  has  a  life  estate,  with  remainder  over  in  fee  simple.**^ 
In  still  others  estates  tail  may  exist  until  barred,  and  this  can  be 
done  by  a  simple  deed  or  by  one  acknowledged  in  a  manner  pro- 
vided by  the  statute. "**  Fines  and  recoveries  are  not  now  in  use, 
though  they  were  used  somewhat  in  the  early  history  of  our  coun- 
try.^' There  are  a  number  of  states  in  which  no  statutory  provi- 
sions as  to  estates  tail  exist.  In  these  states,  fees  tail  are  as  at 
common  law  unless,  when  the  question  comes  before  the  courts, 
such  estates  are  held  not  to  be  adapted  to  the  genius  of  our  in- 
stitutions,'* 

QUASI  ENTAIL. 

SL  A  limitation  to  one  and  the  heirs  of  his  body  out  of  a 
life  estate  is  called  a  * 'quasi  entail,"  and  is  not  af- 
fected by  the  statute  de  donis  conditionalibus. 

\ 

»»  See  Williams,  Real  Prop.  (17th  Am.  Ed.)  note  121. 

o«  In  re  Ilobinson's  Estate,  149  Pa,  St  418,  24  Atl.  297;  Ray  v.  Alexander, 
146  Pa.  St  242,  23  AU.  383;  Durant  v.  Muller,  88  Ga,  251,  14  S.  E.  612;  Burris 
v.  Page,  12  Mo.  358;  Pruitt  v.  Holland,  92  Ky.  641,  18  S.  W.  852;  Pricliard  v. 
James,  93  Ky.  306,  20  S.  W.  216;   Lanham  v.  Wilson  (Ky.)  22  S.  W.  438. 

67  Doty  V.  Teller,  54  N.  J.  Law,  163,  23  Atl.  944;  Clarkson  v.  (Harksoa,  125  Mo. 
381,  28  S.  W.  446;  Brown  v,  Rogers,  125  Mo.  392,  28  S.  W.  630.  In  some 
states  remainders  after  estates  tail  are  preserved  Lf  they  take  effect  on  the 
death  of  the  first  taker  without  issue,  the  entail  being  extinct  by  that  event 
1  Dembitz.  Land    Tit  117. 

B8  1  stim.  Am.  St  I^aw,  §  1313;  Williams,  Real  Prop.  (17th  Am.  Ed.)  note  121; 
1  Washb.  Real  Prop.  (5th  Ed.)  117,  note  2;  1  Shars.  &  B.  Lead.  Gas.  Real  Prop. 
109.  As  to  barring  the  entail  by  deed,  see  Collamore  v.  CJollamore,  158  Mass. 
74,  32  N.  E.  1034. 

B»  Jewell  V.  Warner,  35  N.  H.  176;  Lyle  v.  Richards,  9  Serg.  &  K.  (Pa,)  322; 
Carter  v.  McMichael,  10  Serg.  &  R.  (Pa.)  429;   Wood  v.  Bayard,  63  Pa.  St.  320. 

•  0  Jordan  v.  Roach,  32  Miss.  481.  In  some  states  It  has  been  held  that  the 
Etatnte  de  donis  conditionalibus  is  not  In  force,  and  that  limitations  to  a  man 
and  the  heirs  of  his  body  create  fees  conditioDai  at  common  law.     Pierson  v. 


54  ESTATES    AS    TO    QUANTITY ESTATES    TAIL.  (Ch.  4 

An  estate  may  be  limited  to  one  and  the  heirs  of  his  body  daring 
the  life  of  another  person.  The  statute  de  donis  does  not  apply  to 
snch  an  estate;  so  it  is  not  a  fee  tail,  but  resembles  more  a  fee 
conditional  at  common  law.'^  This  form  of  limitation  is  usually 
called  a  "quasi  entail." 

Lane,  CO  Iowa,  60,  14  N.  W.  90;  Rowland  v.  Warren,  10  Or.  129;  Izard  v. 
Middleton,  1  Bailey,  Eq.  (S.  C.)  227;  Barksdaie  v.  Gamage,  3  Rich.  Kq.  (S.  C) 
379;   Burnett  v.  Burnett,  17  S.  G.  545. 

«i  B^urther,  as  to  quasi  entail,  see  Grey  v.  Mannock,  2  Eden,  339;  Dillon  v. 
DUlon,  1  BalL  &  R  77;  Allen  v.  Allen,  2  Dru.  &  War.  307;  Campbell  v.  San- 
dys, 1  Schoales  &  L.  2SL 


§   33)      ESTATES    AS   TO    QUANTITY— CONVENTIONAL   LIFE    ESTATES. 


55 


CHAPTEB  V. 

ESTATES  AS  TO  QUANTITY  (Continued)-<:ONVENTIONAL  LIFB 

ESTATES. 

32.  Life  Estates  Defined. 

33.  Creation  of  Life  Estate. 
&t-36.  Conventional  Life  Estates. 

37.    Incidents  of  Life  Estates. 
S8-39.  Estates  per  Autre  Vie. 

LIFE  ESTATES  DEFINED. 

32.  Life   estates   are   freeholds  not   of  inheritance.     They 
include : 

(a)  Estates  for  the  tenant's  ov^m  life. 

(b)  Estates  for  the  Ufe  of  another,-per  autre  vie. 

(c)  Estates  for  an  uncertain  period,  v^hich  may  continue 

during  a  life  or  lives. 

Life  estates  come  next  below  estates  tail  in  order  of  qnantity  of 
inWest  They  are  freeholds,  bnt  not  of  inheritance.^  In  genera^ 
terms,  they  are  estates  whose  duration  is  limited  by  the  length  of 
a  human  life.  Estates  of  uncertain  duration,  which  may  con- 
tinue during  a  life  or  lives,  are  regarded  as  life  estates.'  It  is  im- 
material how  improbable  it  is  that  the  estate  will  last  during  a 
life.  It  is  sufficient  if  by  possibility  it  may  do  so.  An  estate  to  a 
woman  during  widowhood  is  a  life  estate.  It  may  last  during  her 
life,  but  it  cannot  last  longer.' 

CREATION  OF  LIFE  ESTATES. 

33    As  to  mode  of  creation,  life  estates  are: 

(a)  Conventional,  created  by  act  of  the  parties  (p.  56). 

(b)  Legal,  created  by  operation  of  lav^  (p.  69). 

1  2  BL  Comm.  120.  ^-- 

«  Hurd  y.  cashing.  7  Pick.  (Mass.)  169;   Warner  y.  Tanner,  ^  Ohio  St.  US; 
Beeson  y.  Burton,  12  C.  B.  647.    Bnt  cf.  Gllmore  y.  Hanulton,  83  Ind.  198. 
•  Roseboom  y.  Van  Vecliten,  5  Denio  (N.  Y.)  414. 


56  ESTATES    AS    TO    QUANTITY CONVENTIONAL    LIFE    ESTATES.       (Ch.   5 

The  main  division  of  life  estates  is  into  conventional  and  legal 
life  estates.  The  former  are  those  which  the  parties  create  by 
their  acts,  having  the  creation  of  such  estates  in  view  as  the  re- 
sult of  the  acts,  as  where  the  owner  of  a  fee  simple  grants  an- 
other the  land  for  so  long  as  he  lives.*  Legal  life  estates,  on  the 
other  hand,  result  from  the  operation  of  law,  without  any  acts 
by  the  parties  looking  to  such  result,  but  from  acts  done  for  other 
purposes.  For  example,  marriage  may  give  both  husband  and 
wife  interests  in  the  realty  of  the  other,  although  nothing  has  been 
said,  or  no  express  contract  njade,  in  relation  to  such  realty.  These 
estates  are  created  by  operation  of  law,  and  are  called  life  estates. 
Conventional  life  estates  will  be  considered  in  the  remainder  of 
this  chapter,  and  legal  life  estates  in  the  succeeding  chapter. 

SAME— CONVENTIONAL  LIFE  ESTATES. 

34.  Conventional  life  estates  may  be  measured  by  one  or 

more  lives. 

35.  At  common  law  no  -words  of  limitation  need  be  added 

to  the  grantee's  name  to  create  a  life  estate. 

36.  Estates  per  autre  vie  arise  by  express  limitations  to 

a  grantee  for  the  life  of  another  person,  or  by  the 
assignment  of  an  existing  life  estate. 

Conventional  life  estates  are  of  two  sorts,  depending  on  the 
person  whose  life  limits  the  duration  of  the  estate.  They  are 
either  for  one's  own  life,"  or  during  the  life  of  another  person,  in 
which  case  they  are  called  "estates  per  autre  vie."  ^  An  estate 
for  one's  own  life  is  regarded  as  of  a  higher  nature  than  an  estate 
per  autre  vie.''  Estates  during  two  lives,  as  "to  A.  and  B.,  during 
their  joint  lives,"  or  "to  A.,  during  the  lives  of  B.  and  C,"  are  in 

*  2  BL  Comm.  120.  By  statute  in  several  states,  life  estates  "may  be  creat- 
ed in  a  term  of  years  and  a  remainder  limited  thereon."  1  Stim.  Am.  St  Law, 
f  1427.  A  life  estate  cannot  be  created  by  paroL  Stewart  v.  Clark,  13  Meta 
(Mass.)  71);   Garrett  v.  Clark,  5  Or.  4t^ 

6  Co.  Litt.  §  56. 

•  Co.  LItt.  §  56;  2  BL  Comm.  120. 
T  2  BL  Comm.  121. 


§§   34-36)  CREATION    OF   LIFE   ESTATES.  67 

reality  measured  by  a  single  life.  A  limitation  during  joint  live» 
is  in  effect  the  same  as  during  the  life  of  the  shori;est  liver  of  those 
named,  and  one  during  two  or  more  lives  is  equivalent  to  an  es- 
tate during  the  life  of  the  one  who  lives  longest.'  An  estate  for 
joint  lives  must  be  expressly  so  limited.' 

Words  of  Limitation. 

According  to  common-law  rules,  if  an  estate  is  granted  to  a  man 
without  adding  any  words  of  limitation,  he  takes  a  life  estate. 
Therefore,  no  special  words  need  be  used  to  create  a  life  estate,^" 
except  where  there  is  a  statutory  rule  that  a  fee  simple  is  presumed 
to  be  conveyed  unless  otherwise  restricted.''  Since  an  estate  for 
one's  own  life  is  considered  a  higher  interest  than  an  estate  per 
autre  vie,  where  the  conveyance  does  not  specify  for  whose  life 
the  grantee  is  to  hold,  he  takes  it  for  his  own  life.  But  where 
the  grantor  can  only  give  an  estate  for  his  own  life,  as  where  he 
Is  himself  a  tenant  for  life  or  a  tenant  in  tail,  then  the  grantee  will 
take  only  what  the  grantor  can  lawfully  give; "    that  is,  an  es- 

•  Brudnel's  Case,  6  Coke,  9a.     See  Clark  v.  Owens,  18  N.  Y.  434;    Dale's 
Case,  Cro.  Eliz.  182. 
»  Brudnel's  Case,  5  Coke,  Da. 

10  Jackson  v.  EmWer,  14  Johns.  (N.  Y.)  198;  Tnisdell  v.  Lehman,  47  N.  J. 
Eq.  218,  20  AU.  391;  Hunter  v.  Bryan,  5  Humph.  (Tenn.)  47;  Gray  v.  Packer. 
4  Watts  &  S.  (Pa.)  17;  Jackson  v.  Van  Hoesen,  4  Cow.  (N.  Y.)  325;  Kearney 
V.  Kearney,  17  N.  J.  Eq.  59;  Wusthoff  v.  Dracourt,  3  Watts  (Pa.)  240;  Boze- 
man  v.  Bishop,  94  Ga.  459,  20  S.  E.  11.  So  a  life  estate  may  be  created  by  a 
reservation.  Doe  v.  Grady,  2  Dev.  (N.  C.)  395;  Hodges  v.  Spicer,  79  N.  C. 
223;  Richardson  v.  York,  14  Me.  21G.  Or  by  a  quitclaim  to  a  co-tenant  in  com- 
mon.   McKinney  v.  Stacks,  G  Heisk.  (Tenn.)  284. 

11  See  ante,  p.  37.  As  to  what  words  will  pass  only  a  life  estate,  see  Corby 
T.  Corby,  85  Mo.  371;  Leapcr  v.  Neagle,  94  N.  C.  338;  Dew  v.  Kuehn.  64  Wis. 
293,  25  N.  W.  212;  Lowrie  v.  Ryland,  65  Iowa,  584,  22  N.  W.  686;  Jones' 
Ex'rs  V.  Stills,  19  N.  J.  Eq.  324;  Sheafe  v.  Gushing,  17  N.  H.  508;  Jossey  v. 
White,  28  Ga.  2G5;  Schaefer  v.  Schaefer,  147  111.  337,  81  N.  E.  136;  Robinson 
V.  Robinson,  89  Va.  916,  14  S.  E.  916.  And  cf.  BeaU's  Lessee  v.  Holmes.  G 
Har.  &  J.  (Md.)  205;  Jackson  v.  WeUs,  9  Johns.  (N.  Y.)  222;  Wheaton  v. 
Andress,  23  Wend.  (N.  Y.)  452;  Moore  v.  Dimond,  5  R.  I.  121;  In  re  Frothlng- 
ham,  63  Hun,  430,  18  N.  Y.  Supp.  695;  Allen  v.  Boomer,  82  Wis.  364,  52  N.  W. 
426; '  Kiene  v.  Gruehle,  85  Iowa,  312,  52  N.  W.  232. 

12  .Tackson  v.  Mancius,  2  Wend.  (N.  Y.)  357;  Rogers  v.  Moore,  11  Conn.  553; 
BeU  V.  Twilight,  22  N.  H.  500. 


58  ESTATES    AS   TO    QUANTITY CONVENTIONAL    LIFE   ESTATES.       (Ch.  5 

tate  for  the  grantor's  life.  A  man  may  take  a  life  estate  by  im- 
plication, as  by  a  devise  of  land  to  the  testator's  heirs  after  the 
death  of  B.,  from  which  it  would  be  presumed  that  B.  was  to  have 
the  land  during  his  life.^"  But,  if  the  devise  is  to  a  stranger  after 
B.'s  death,  no  such  presumption  arises,  and  the  estate  goes  to  the 
heir  during  B.'s  life.^* 
Estates  per  Autre   Vie. 

An  estate  for  the  life  of  another  *'  usually  arises  by  one  who  is 
tenant  for  life  assigning  his  interest  to  another,  who  thereby  be- 
comes entitled  to  the  land  during  the  life  of  the  grantor.  It  may, 
however,  be  expressly  limited  for  the  life  of  a  third  person.  The 
one  whose  life  limits  the  duration  of  the  estate  is  called  the  "cestui 
qui  vie."  ^' 

INCIDENTS  OF  LIFE  ESTATES. 

37.  The  principal  incidents  of  life  estates  are  the  folio-w- 
ing: 

(a)  Life  estates  are  subject  to  alienation,  voluntary  and 

involuntary  (p.  59). 

(b)  The  tenant   must  pay  the  interest  on  incumbrances 

(p.  60). 

(c)  Rent  due  from  a  lessee  of  the  tenant  is  apportionable 

on  the  death  of  the  tenant  (p.  60). 

(d)  The  tenant  cannot  recover  compensation  for  improve- 

ments or  repairs  (p.  61). 

(e)  The  tenant  is  entitled  to  estovers  (p.  61). 

(f)  There  is  a  right  to   emblements   on  the  death  of  a 

tenant   for   life,  but   he  cannot   claim   them  when 
he  forfeits  his  estate  (p.  61). 

18  Barry  v.  Shelby,  4  Hayw.  (Tenn.)  229;  Haskins  v.  Tate,  25  Pa.  St.  219; 
Nicholson  v.  Drennan,  35  S.  C.  333,  14  S.  E.  719. 

14  1  Washb.  Real  Prop.  (5th  Ed.)  p.  123. 

1 B  It  may  be  for  more  than  one  life.  Ante,  p.  56.  But,  In  four  states.  If  more 
than  two  cestuis  qui  vie  are  named,  the  remainder  nevertheless  takes  effect 
on  the  death  of  the  two  first  named.  1  Stim.  Am.  St.  Law,  §  1422.  Cf.  Clark 
V.  Owens,  18  N.  Y.  434.  By  statute,  6  Anne,  c.  18,  If  the  one  who  claims  an 
estate  per  autre  vie  cannot  produce  the  cestui  qui  vie.  It  Is  presumed  that  he  is 
dead,  and  the  estate  Is  terminated. 

i«  2  Bl.  Comm.  258;  Co.  Lltt.  41b. 


§   37)  INCIDENTS    OF    LIFE   ESTATES. 


59 


(g)  A  tenant  must  not  commit  waste, — that  is,  any  per- 
manent and  material  injury  to  the  inheritance 
(p.  62). 

(h)  Life  estates  are  subject  to  merger  (p.  66). 

The  following  discussion  of  the  Incidents  of  life  estates  applies 
to  legal  as  well  as  to  conventional  life  estates. 

Alienation. 

A  tenant  for  life  has  power  to  dispose  of  Ms  interest  in  whole 
or  in  part,  unless  there  is  a  condition  in  restraint,  in  the  terms  of 
his  grant;  "  but  he  can  give  another  no  rights  in  the  land  which 
will  extend  beyond  his  life.^^  There  was  a  common-law  rule  that 
a  tenant  for  life  forfeited  his  estate  if  he  attempted  to  convey  a 
greater  interest  than  he  owned,  by  a  conveyance  operating  through 
transfer  of  possession,  as  by  a  feoffment  in  fee,^*  because  such  a 
feoffment  was  a  renunciation  of  tenure,  and  worked  a  disseisin. 
But  this  is  not  now  the  rule.^"  Life  estates  are  also  subject  to 
involuntary  alienation,  as  for  taxes  and  debts.*^ 

IT  Criswell  v.  Grumbling,  107  Pa.  St.  408;  Hay  ward  v.  Kinney,  84  Mich.  591, 
48  N.  W.  170. 

18  Lehndorf  v.  Cope,  122  111.  317,  13  N.  E.  505;  Mclntyre  v.  Clark,  6  Misc. 
Rep.  377,  26  N.  Y.  Supp.  744;  McLendon  v.  Horton  (Ga.)  22  S.  E.  45;  Fields 
v.  Bush,  94  Ga.  G64,  21  S.  E.  827. 

18  2  Bl.  Comm.  274;  French  v.  Rollins,  21  Me.  372.  See,  also,  Stump  v. 
Findlay,  2  Rawle  (Pa.)  168.  This  did  not  apply  to  conveyances  under  the 
statute  of  uses.  Jackson  v.  Mancius,  2  Wend.  (N.  Y.)  357;  Pendleton  v.  Van- 
devier,  1  Wash.  (Va.)  381;  Stevens  v.  Winship,  1  Pick.  (Mass.)  318.  Nor  to  a 
quitclaim  in  fee.  Bell  v.  Twilight,  22  N.  H.  500.  Nor  to  a  lease  for  years. 
Locke  V.  Rowell,  47  N.  H.  46. 

20  Stevens  v.  Winship,  1  Pick.  (Mass.)  318;  Rogers  v.  Moore,  11  Conn.  553; 
McCorry  v.  King's  Heirs,  3  Humph.  (Tenn.)  267;  McKee's  Lessee  v.  Pfout, 
8  Dall.  (Pa.)  486;  McMichael  v.  Craig  (Ala.)  16  South.  883.  The  conveyances 
which  caused  forfeitures  were  feoffment,  fine,  and  recovery;  but  these  are  not 
now  in  use.    1  Dembitz,  Land  Tit.  108. 

81  Roberts  v.  Whiting,  16  Mass.  186;  Wheeler  v.  Gorham,  2  Root  (Conn.) 
828;  Ehrisman  v.  Sener,  162  Pa.  St.  577,  29  AU.  719;  Thompson  v.  Murphy,  10 
Ind.  App.  404,  87  N.  E.  1094;  American  Mortg.  Co.  of  Scotland  v.  Hill,  92 
Ga.  297,  18  S.  E.  425.  But  see,  as  to  the  life  tenant's  liability  for  special 
assessments,  Stilwell  v.  Doughty,  2  Bradf.  Sur.  (N.  Y.)  311. 


60  ESTATES    A3    TO   QUANTITY CONVENTIONAL   LIFE   E3TATE3.       (Ch.  5 

Interest  on  Incumbrances. 

It  is  the  duty  of  the  tenant  to  keep  down  the  interest  on  in- 
cumbrances, but  he  is  not  bound  to  pay  off  the  principal;**  and, 
if  he  does,  he  is  entitled  to  contribution  from  the  reversioner  or 
remainder-man." 

Apportionment  of  Rent. 

If  the  tenant  for  life  makes  a  lease  reserving  rent  and  dies  be- 
fore the  day  the  rent  is  due,  the  rent  is  apportioned,  and  his  per- 
sonal representative  can  recover  the  amount  due  when  the  lessor 
dit'd.^*  The  common-law  rule  was  otherwise,  however,  until  the 
statute  of  11  Geo.  II.  c.  19,  §  15. 

aa  Thomas  v.  Thomas,  17  N.  J,  Eq.  350;  Cogswell  v.  Cogswell.  2  Edw.  Ch, 
(N.  Y.)  231;  Uunt  v.  Watkins,  1  Humph.  (Tenn.)  498;  McDonald  v.  Heylin,  ^ 
Phila.  (Pa.)  73;  Barnum  v.  Barnum,  42  Md.  251.  If  he  fails  to  pay  the  in- 
terest, he  Is  liable  to  the  remainder-man  for  any  damage  suffered.  Wade  v. 
Malloy.  16  Ilun  (N.  Y.)  22G.  The  life  tenant  must  also  pay  taxes.  Jenks  v. 
Horton,  96  Mich.  13,  55  N.  W.  372;  Watkins  v.  Green,  101  Mich.  493,  60  N.  W. 
44;  Bone  t.  Tyrrell,  113  Mo.  175,  20  S.  W.  796;  Disher  v.  Disher,  45  Neb. 
100.  63  N.  W.  368;  Chaplin  v.  IT.  S.,  29  Ct.  CI.  231;  Varney  v.  Stevens,  22  Me. 
331;  Patrick  v.  Sherwood,  4  Blatchf.  112,  Fed.  Cas.  No.  10,804;  Fleet  v.  Dor- 
land,  11  How.  Pi-ac.  (N.  Y.)  489;  Johnson  v.  Smith,  5  Bush  (Ky.)  102.  But 
see  Cochran  v.  Cochran,  2  Desaus.  Eq.  (S.  C.)  521.  But  he  Is  entitled  to  con- 
tribution on  assessments  for  permanent  improvements.  Reyburn  v.  Wallace, 
93  Mo.  326,  3  S.  W.  482;  In  re  Bradley's  Estate,  3  Pa.  Dist.  R.  359;  Bobb  v. 
Wolff,  .54  Mo.  App.  515;  Moore  v.  Simonson  (Or.)  39  Pac.  1105.  Cf.  In  re  Wy- 
att's  Estate,  9  Misc.  Rep.  285,  30  N.  Y.  Supp.  275  (insurance  premiums). 

2  3  Foster  v.  Hilliard,  1  Story,  77,  Fed.  Cas.  No.  4,972;  Hunt  v.  Watkins,  1 
Humph.  (Tenn.)  498;  Daviess  v.  Myers,  13  B.  Mon.  (Ky.)  511.  Cf.  Stevens  v. 
Melcher,  80  Hun,  514,  30  N.  Y.  Supp.  025.  The  tenant's  share  is  found  by  com- 
puting the  present  worth  of  the  interest  payments  which  he  would  have  to 
make  during  the  probable  existence  of  his  life  according  to  tables  of  mor- 
tality. The  Carlisle  tables  are  generally  used.  Abercrombie  v.  Riddle,  3  Md. 
Ch.  320;  Bell  v.  Mayor,  etc.,  10  Paige  (N.  Y.)  49;  Foster  v.  Hilliard,  supra; 
Atkins  V.  Kron,  8  Ired.  Eq.  (N.  C.)  1;  Swaine  v.  Ferine,  5  Jolms.  Ch.  (N.  Y.) 
482;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  (N.  Y.)  231.  But  see  note  to  Estabrook 
V.  Hapgood,  10  Mass.  313;  Dorsey  v.  Smith,  7  Har.  &  J.  (Md.)  345,  367.  There 
was  formerly  an  arbitrary  rule  that  he  should  pay  one-third,  and  ttiis  seems 
to  still  exist  in  South  Carolina.  Wright  v.  Jennings,  1  Bailey  (S.  C.)  277.  Cf. 
Brand  v.  Rhodes'  Adm'r  (Ky.)  30  S.  W.  597. 

2*  Borie  V.  CYissman,  82  Pa.  St.  125;  Price  v.  Pickett,  21  Ala.  741.  At  com- 
mon law  there  was  no  apportionment  of  rent.  Clun  v.  Fisher,  Cro.  Jac.  309; 
Rockingham  y.  Penrice,  1  P.  Wms.  177;   Jenner  v.  Morgan,  Id.  391;    Norrls  v» 


§   37)  INCIDENTS    OF   LIFE   ESTATES.  61 

Improvements  cmd  Repairs. 

The  tenant  for  life  can  recover  nothing  for  improvements  which 
he  makes  on  the  estate;  *'  but  he  may  put  buildings  into  tenant- 
able  condition  at  the  expense  of  the  estate,  or  complete  a  house  be- 
gun by  the  testator  under  whom  he  holds."*  He  is,  however,  bound 
to  make  ordinary  repairs  at  his  own  expense.'^ 

Estovei's. 

A  tenant  for  life  has  a  right  to  cut  timber  growing  on  the  land 
to  use  for  certain  purposes.  This  is  called  the  right  to  estovers  or 
botes,  and  comprises:  (1)  House  bote,  or  the  right  to  cut  wood 
for  repairing  buildings  and  to  use  for  fuel,^^  the  latter  sometimes 
being  termed  fire  bote;  (2)  plough  bote,  or  the  right  to  cut  wood 
for  repairing  farming  implements;  *'  and  (3)  hay  bote,  or  the  right 
to  cut  wood  for  repairing  fences.^" 

EmhleTnents. 

The  personal  representative  of  a  tenant  for  life  is  entitled  to 
emblements,^^  since  the  tenant's  estate  is  one  of  uncertain  dura- 
tion.'^     But  the  tenant  himself  cannot  claim  them  if  he  forfeits  his 

Harrison,  2  Madd.  268.  This  was  changed  by  the  statute  of  11  Geo.  II.  c.  19, 
§  15.  The  statute  has  been  re-enacted  In  some  states  (1  Stim.  Am.  St.  I^w, 
§  2027),  and  followed  in  others. 

2  5  Hagan  v.  Varney,  147  111.  281,  35  N.  E.  219;  In  re  Rennie's  Estate,  10 
Misc.  Rep.  0.38,  32  N.  Y.  Supp.  225;  Thurston  v.  Dickin-son,  2  Rich.  Eq.  (S.  C.) 
317;  Merritt  v.  Scott,  81  N.  C.  385;  Corbett  v.  Laurens,  5  Rich.  Eq.  (S.  C.)  301; 
Elam  V.  Parkhill,  60  Tex.  581;  Wilson  v.  Parker  (Miss.)  14  South.  204;  Van 
Bibber  v.  Williamson,  37  Fed.  756.  Cf.  Austin  v.  Stevens,  24  Me.  520;  Dates- 
man's  Appeal,  127  Pa.  St.  348,  17  Atl.  1086,  1100;  Caldwell  v.  Jacob  (Ky.)  27 
S.  W.  86. 

26  Sohier  v.  Eldredge,  103  Mass.  345;  Parsons  v.  Winslow,  16  Mass.  361.  Cf. 
Brough  V.  HJggins,  2  Grat.  (Va.)  408;  In  re  Laytin  (Surr.)  20  N.  Y.  Supp.  72. 

27  In  re  Steele,  19  N.  J.  Eq.  120;  Kearney  v.  Kearney,  17  N.  J.  Eq.  59;  Wil- 
son V.  Edmonds,  24  N.  H.  517;  Brooks  v.  Brooks,  12  S.  C.  422. 

28  White  V.  Cutler,  17  Pick.  (Mass.)  248;  Webster  v.  Webster,  33  N.  H.  18; 
Smith  V.  Jewett,  40  N.  H.  530:  Smith  v.  Poyas,  2  Desaus.  Eq.  (S.  C.)  65.  But 
see  Padelford  v.  Padelford,  7  Pick.  (Mass.)  152.  Cf.  Loomls  v.  Wilbur,  5  Ma- 
son, 13,  Fed.  Cas.  No.  8,498. 

29  2  Bl.  Comm.  35,  122. 

80  Elliot  V.  Smith,  2  N.  H.  430. 

•  1  See  ante,  p.  8. 

«2  Perry  v.  Terrel,  1  Dev.  &  B.  Eq.  (N.  C.)  441;   Hunt  v.  Watklns,  1  Huraph. 


62 


ESTATES    AS    TO   QUANTITY — CONVENTIONAL    LIFE    ESTATES,        (Ch.   5 


estate  by  not  performing  a  condition,"  though  he  can  if  his  in- 
terest is  tei-minated  without  his  fault."*  The  lessee  of  a  tenant 
for  life  is  entitled  to  emblements;  "  and  so,  also,  would  the  lessee 
of  one  who  held  during  her  widowhood,  but  terminated  her  estate 
by  marriage. >•«  If  she  was  herself  in  possession,  she  could  not 
claim  emblements,  because  she  terminated  the  estate  by  her  own 
act." 

Waste. 

Another  important  incident  of  an  estate  for  life,  and  of  all  par- 
ticular estates,  is  that  the  tenant  must  not  commit  waste; "»  ^jj^t 
is,  to  cause  or  suffer  any  permanent  and  material  injury  to  the 
inheritance.  In  other  words,  the  one  who  is  next  entitled  to  the 
premises  has  a  right  to  have  them  come  to  him  without  their  value 
being  impaired  by  any  destruction  of  the  corporeal  thing.^^  It 
may  be  provided,  at  the  creation  of  the  estate,  that  the  tenant  shall 
not  be  liable  for  waste,  or,  that  he  shall  hold  "without  impeachment 
for  waste."  *°  But  even  then  wanton  injury,  or  "equitable  waste," 
will  be  restrained  by  a  court  of  chancery.*^  Injury  which  occurs 
from  positive  acts  of  the  tenant  is  "voluntary  waste,"  and  injury 

(Tenn.)  498;  Polndexter  v.  Blackburn,  1  Ired.  Eq.  (N.  O.)  286;  Spencer  v. 
Lewis,  1  Houst,  (Del.)  223.    But  cf.  Reiff  v.  Reiff,  64  Pa.  St.  134. 

88  2  Bl.  Coram.  123;  Oland's  Case,  5  Coke,  116a.  Cf.  Debow  v.  Colfax,  10  N. 
J.  Law,  128;   Bulwer  v.  Bulwer,  2  Barn.  &  Aid.  470. 

8  4  Price  V.  Pickett,  21  Ala.  741;  King  v.  Whittle,  78  Ga.  482. 

8  5  King  V.  Poscue,  91  N.  C.  116. 

86  2  Bl.  Comm.  124. 

8  7  Hawkins  v.  Skeggs'  Adm'r,  10  Humph.  (Tenn.)  31;  Oland's  Case,  5  Coke, 
116a. 

88  The  restriction  applied  only  to  a  tenant  in  dower  and  curtesy  until  the  stat- 
ute of  Marlebridge,  52  Hen.  111.  c.  23.  But  a  tenant  In  tail  after  possibility 
of  Issue  extinct  is  not  liable  for  waste.    Ante,  p.  52. 

8  9  Proffitt  V.  Henderson,  29  Mo.  327;  Sackett  v.  Sackett.  8  Pick.  (Mass.)  309; 
Dejarnatte  v.  Allen,  5  Grat.  (Va.)  499;  Huntley  v.  Russell,  13  Q.  B.  DIv  572 
588. 

*o  2  Bl.  Comm.  283;  Pyne  v.  Dor,  1  Term  R.  55;  Bowles'  Case,  11  Coke,  79b. 
See,  also,  Gent  v.  Harrison,  1  Johns.  Eng.  Ch.  517;  Turner  v.  Wright,  2  De  Gex^ 
F.  &  J.  234. 

41  Vane  v.  Lord  Barnard,  2  Vern.  738;  Roet  v.  Somervllle,  2  Eq.  Cas.  Abr. 
759;  Lushlngton  v.  Boldero,  15  Beav.  L  And  see  Marker  v.  Marker,  4  Eng. 
Law  &  Eq.  95. 


§    37)  INCIDENTS    OP    LIFE    ESTATES.  63 

resulting  from  his  neglect  of  duty  is  "permissive  waste," — ^for  ex- 
ample, permitting  a  building  to  fall  down  from  want  of  repair, 
as  distinguished  from  pulling  it  down,  which  would  be  permissive 
waste.** 

The  English  rules  as  to  waste  are  to  a  large  extent  inapplicable 
in  this  country,  owing  to  the  difference  in  circumstances,  es- 
pecially as  to  cutting  down  trees  and  the  use  of  land;  *^  and  what 
would  be  waste  in  a  thickly-settled  Eastern  state  might  not  be  in 
a  new  and  undeveloped  region.**  In  very  many  cases  it  is  a  ques- 
tion of  fact  for  the  jury  whether  the  acts  complained  of  are  wrong- 
ful, as  being  injurious  to  the  estate.*' 

Same — Husbandry. 

If  one  holding  farming  lands  as  tenant  for  life  cultivates  in  a 
way  not  sanctioned  by  the  rules  of  good  husbandry,  he  is  guilty  of 
waste.**  For  instance,  he  should  not  exhaust  the  land  by  con- 
stant tillage,  without  change  of  crop  or  the  use  of  fertilizers,*^ 
nor  should  he  permit  brush  to  choke  up  meadow  land.**  But  it 
would  not,  as  in  England,*®  be  waste  to  change  the  character  of 
the  land,  if  no  substantial  injury  results,  as  by  plowing  up  pasture 
land."^" 

*2  2  Bl.  Comm.  281.  As  to  permissive  waste  by  a  tenant  at  will,  see  Coun- 
tess of  Shrewsbury's  Case,  5  Colie,  13.  And  see  Heme  v.  Bembow,  4  Taunt. 
764.     Of.  Moore  v.  Townshend,  33  N.  J.  Law,  284. 

*8  Keeler  v.  Eastman,  11  Vt.  293;  Pynchon  v.  Stearns,  11  Mete.  (Mass.) 
30i;  Jackson  v.  Brownson,  7  Johns.  (N.  Y.)  227;  Lynn's  Appeal,  31  Pa.  St. 
44;  Drown  v.  Smith,  52  Me.  141;  Crockett  v.  Crockett,  2  Ohio  St.  180;  Kidd 
V.  Dennison,  6  Barb.  (N.  Y.)  9;  Findlay  v.  Smith,  6  Munf.  (Va.)  134.  And 
see  Carpenter,  J.,  In  Morehouse  v.  Cotheal,  22  N.  J.  Law,  521. 

**  Morehouse  v.  Cotheal,  22  N.  J.  Law,  521;  Webster  v.  Webster,  33  N.  EL 
18;    Davis  v.  Gilliam,  5  Ired.  Eq.  (N.  C.)  308. 

4  5  Webster  v.  Webster,  33  N.  H.  18;    King  v.  Miller,  99  N.  0.  583,  6  S.  E.  660. 

*8  Sarles  v.  Sarles,  3  Sandf.  Oh.  (N.  Y.)  601.  Of.  Jackson  v.  Andrew,  18 
Johns.  (N.  Y.)  431. 

*T  Sarles  v.  Sarles,  3  Sandf.  Ch.  (N.  Y.)  601. 

*8  Clemence  v.  Steere,  1  R.  I.  272. 

*9  Keepers,  etc.,  of  Harrow  School  v.  Alderton,  2  Bos.  &  P.  80. 

60  Pynchon  v.  Stearns,  11  Mete.  (Mass.)  304;  Clemence  v.  Steere,  1  R.  L 
272;   Alexander  v.  Fisher,  7  Ala.  514.     Of.  Chase  v.  Hazelton,  7  N.  H.  171. 


6i  ESTATES    A3   TO    QUANTITY CONVENTIONAL    LIFE  ESTATES.       (Ch.   5 

Same —  Trees. 

We  have  seen  that  the  tenant  may  take  a  reasonable  amount  of 
wood  for  estovers,"^  and  the  right  may  extend  further  as  to  the 
"clearing"  of  woodland  for  purposes  of  cultivation."^'  Whether 
ifhis  or  any  other  cutting  of  timber  is  waste  depends  in  each  case 
on  the  customs  of  the  locality  and  the  condition  of  the  estate."*' 
A.  tenant  for  life  cannot  cut  timber  to  sell,"**  except  in  cases  where 
that  has  been  the  way  of  enjoying  the  land.**" 

Same — Mln-es  and  Quarries. 

Whether  or  not  it  is  waste  to  take  minerals,  stone,  clay,  or 
gravel  depends  on  the  previous  use  of  the  premises.  If  such  has 
been  the  manner  of  enjoying  the  profits  of  the  estate,  the  tenant 
may  continue  it;  '"  but  he  must  not  open  new  mines  or  quarries.'*'' 
Nor  can  the  one  entitled  to  the  next  estate  work  the  mines  and 

81  Ante,  p.  61.  Padelford  v.  Padelford,  7  Pick.  (Mass.)  152;  Calvert  v. 
Rice.  91  Ky.  5d3,  16  S.  W.  3.51;  Gardiner  v.  Derrinj?,  1  Paige  (N.  Y.)  573; 
Smith  V.  Jewett,  40  N.  H.  530;    MUes  v.  Miles,  32  N.  H.  147. 

B2  Drown  v.  Smith,  52  Me.  141;  Ward  v.  Sheppard,  2  Hayw.  (Tenn.)  461; 
Owen  V.  Hyde,  6  Yerg.  (Tenn.)  334;  Dishor  v.  Disher,  45  Neb.  100,  63  N.  W. 
368;  Davis  v.  Cldrk,  40  Mo.  App.  515.  But  cf.  Chase  v.  Hazelton,  7  N.  H. 
171.  And  can  sell  the  wood  so  cut.  Wilkinson  v.  Wilkinson,  59  Wis.  557,  18 
N.  W.  527;  Keeler  v.  Eastman,  11  Vt.  293;  Crockett  v.  Crockett,  2  Ohio  St. 
180;    Davis  v.  Gilliam,  5  Ired.  Eq.  (N.  C.)  308. 

58  McCullough  V.  Irvine's  Ex'rs,  13  Pa.  St.  438;  Keeler  v.  Eastman,  11  Vt. 
293.  Cf.  Parkins  v.  Coxe,  2  Hayw.  (N.  C.)  339;  Carr  v.  Carr,  4  Dev.  &.  B. 
(N.  C.)  179. 

B4  Johnson  v.  Johnson,  18  N.  H.  594;  Davis  v.  Gilliam,  5  Ired.  Eq.  (N.  C.) 
308;  Miller  v.  Shields,  55  Ind.  71;  Parkins  v.  Coxe,  Mart.  &  H.  (N.  C.)  517; 
Clemence  v.  Steere,  1  R.  I.  272;  Kidd  v.  Dennison,  6  Barb.  (N.  Y.)  9. 

6  5  Clemence  v.  Steere,  1  R.  I.  272;  Ballentine  v.  Poyner,  Mart.  &  H.  (N.  C.) 
268;  Den  v.  Kinney,  5  N.  J.  Law,  552.  And  cf.  Carr  v.  Carr,  4  Dev.  &.  B.  (N. 
0.)  179.    See,  also,  the  exception  in  note  44. 

58  Astry  V.  Ballard,  2  Mod.  193;  Neel  v.  Neel,  19  Pa.  St.  323;  Sayers  v. 
Hoskinson,  110  Pa.  St.  473,  1  Atl.  308.  Cf.  Russell  v.  Bank,  47  Minn.  286,  50 
N.  W.  228;  Billinss  v.  Taylor,  10  Pick.  (Mass.)  460;  Reed's  Ex'rs  v.  Reed, 
16  N.  J.  Eq.  248;  Lynn's  Appeal,  31  Pa.  St.  44.  And  see  Irwin  v.  Covode, 
24  Pa.  St  162.  The  life  tenant  is  allowed  new  shafts  Into  old  veins.  Crouch 
v.  Puryear,  1  Rand.  (Va.)  258;    Clavering  v.  Clavering,  2  P.  Wms.  388. 

6T  Gaines  v.  Mining  Co.,  32  N.  J.  Eq.  86;  Owings  v.  Emery,  6  Gill.  (Md.) 
260.  Cf.  Coates  v.  Chpover,  1  Cow.  (N.  Y.)  460;  Williamson  v.  Jones,  39  W.  Va. 
231,  19  S.  E,  436;   Childs  v.  Railway  Co.,  117  Mo.  414,  23  S.  W.  373. 


c    37)  INCIDENTS   OF   UFB   BSTATK8.  60 

quarries  on  the  land  during  the  continuation  of  the  Me  tenant's 
Interest  without  the  consent  of  the  latter.'" 

Same — Buildings  and  Fences. 

Formerly  there  was  a  very  strict  rule  that  almost  any  alteration 
in  a  building  would  be  waste;  "  but  this  is  now  relaxed,  and  the 
general  test  is  applied  as  in  other  cases,— the  question  being,  has 
the  value  of  the  reversion  been  impaired?  •»  It  would,  of  course, 
be  waste  for  the  tenant  to  remove  things  which  he  had  mad'e  real 
fixtures  by  annexation."  But  waste  in  respect  to  buildings  may 
be  committed  by  suffering  them  to  become  ruinous  for  want  of  re- 
pair.«2  This  is  almost  the  only  case  in  which  permissive  waste  oc- 
curs. As  already  stated,"  wood  may  be  cut  to  keep  the  build- 
ings ?n^  fences  in  repair;  but  the  duty  to  repair  exists  when  there 
is  no  wood.'*  However,  the  tenant  is  not  bound  to  put  in  repair 
buildings  which  are  ruinous  when  he  takes  the  premises.®'^  The 
tenant  is  liable  for  negligent,  but  not  for  accidental,  fires.«« 
So/me—Liahilivy  for   Waste  hy  Strangers,  etc. 

The  tenant  is  liable  for  waste  committed  by  strangers,"  but 
not  for  injury  resulting  from  act  of  God  or  the  law  or  the  public 
enereiy  '^ 

»•  See  Kler  r.  Peterson,  41  Pa.  St.  ^7. 

•»  This  was  on  the  ground  that  such  chancre  tended  to  destroy  evidpnces  of 
Identity.  HunUey  t.  Russell.  13  Q.  B.  Div.  572.  588.  it  made  no  difference  that 
gnch  changes  increased  the  value  of  the  buUding.  City  of  London  v.  Greyme, 
Cro  Jac.  181.     Cf.  Douglass  v.  Wiggins,  1  Johns.  Ch.  435. 

•0  Agate  v.  Lowenbein,  57  N.  Y.  604;  Doe  v.  Earl  of  Burlington.  5  Bam.  & 
AdoL  507;  Young  v.  Spencer,  10  Bam.  &  C.  145;   Hasty  v.  Wheeler,  12  Me.  434. 

•  1  McCnllough  V.  Irvine,  13  Pa.  St.  4;«;  Dozier  v.  Gregory,  1  Jones  (N.  C.) 
100.    Cf.  Clemence  t.  Steere,  1  R.  I.  272. 

•J  Abbot  of  Sherboume's  Case,  Y.  B.  12  Hen.  IV.  6.    Cf.  Dozier  v.  Gregory, 
1  Jones  (N.  C.)  100. 
•»  Ante,  p.  61. 
•*  Co.  Litt.  53a. 

•  »  Wilson  V.  Edmonds,  24  N.  H,  517;   Clemence  v.  Steere,  1  R.  L  272, 

•e  Anon.,  Fltzh.  Abr.  "Waste,"  pL  30;    Cornish  v.  Stratton,  8  B.  Mon.  (Ky.) 

686. 

67  Fay  v.  Brewer,  3  Pick.  (Mass.)  203;  Cook  v.  Transportation  Co.,  1  Denio 
(N.  Y.)  91;  Austin  t.  Railway  Co.,  25  N.  Y.  334.    Cf.  Beers  v.  Beers,  21  Mich. 

464. 
••  Co.  Lltt  53a,  54a;  1  Washb.  Real  Prop.  (5th  Ed.)  156;  Pollard  v.  Shaiiffer, 

BEAX.  PBOP. — 6 


66  leSTATBS    AS    TO    QUANTITY CX)NVBNTIONAL    LIFE    ESTATES.       (Ch.   5 

Same — Remedies  for   Waste, 

When  waste  has  been  committed,  compensation  may  be  recov- 
ered for  the  injury  done;  or,  if  it  is  threatened,  it  may  be  re- 
strained by  injunction."  When  trees,  ore,  etc.,  have  been  wrong- 
fully severed,  they  belong  to  the  reversioner  or  remainder-man  as 
personal  property,  and  he  can  maintain  appropriate  actions  there- 
for.^" There  were  formerly  many  technical  rules  arising  out  of 
the  common-law  actions  for  waste,  but  the  matter  is  now  largely 
changed  by  statute.''^  By  and  against  whom  actions  for  waste 
lie  is  also  a  subject  of  statutory  regulation.^*  By  the  statute  of 
Gloucester  '*  a  penalty  of  treble  damages  and  forfeiture  of  the 
place  wasted  was  imposed,  and  forfeiture  and  double  or  treble 
damages  are  imposed  by  statute  in  many  states.^* 

Merger. 

Merger  is  the  absorption  of  a  less  estate  into  a  greater  where  two 
estates  meet  in  the  same  person.  Thus,  where  an  estate  in  fee 
simple  and  an  estate  of  less  duration,  such  as  a  life  estate  or  an  es- 
tate for  years,  meet  in  the  same  person,  the  smaller  interest  is  said 
to  be  "merged" — literally  drowned — in  the  greater  and  all-com- 

1  DaU.  (Pa.)  210.  Cf.  AttersoU  v.  Stevens,  1  Taunt  198;  Huntley  v.  Russell, 
13  Q.  B.  Div.  572. 

«»  See  Fetter,  Eq.  299;  Obrlen  v.  Obrien,  Amb.  107;  Perrot  v.  Perrot,  3  Atk. 
94.  See,  also,  Smyth  v.  Carter,  18  Beav.  78;  Cahn  v.  Hewsey,  8  Misc.  Rep. 
3S4,  29  N.  Y.  Supp.  1107;  Arment  v.  Hensel,  5  Wash.. 152,  31  Pac.  4(>4;  Web- 
ster V.  Peet,  97  Mich.  326,  56  N.  W.  558;  Perry  v.  Hamilton,  138  Ini  271,  35 
N.  E.  830.     Cf.  Jackson  v.  Andrew,  18  Johns.  431. 

TO  Whitfield  v.  Be  wit,  2  P.  Wms.  240;  Castlemaia  v.  Craven,  22  Vin.  Abr. 
523,  pL  IL  And  see  Bewick  v.  Whitfield,  3  P.  Wms,  267;  Bateman  v.  Hotch- 
kin,  31  Beav.  486;  Honywood  v.  Honywood,  L.  R.  18  Eq.  306;  Nicklase  v.  Mor- 
rison, 56  Ark.  553,  20  S.  W.  414;  Stowell  v.  Waddingham,  100  CaL  7,  34  Pac. 
436. 

Ti  See  1  Washb.  Real  Prop.  (5th  Ed.)  p.  157;  Smith  v.  Mattingly  (Ky.)  28 
S.  W.  503. 

72  1  Stim.  Am.  St.  Law,  §  1353.  And  see  Dodge  v.  Davis,  85  Iowa,  77,  52 
N.  W.  2;  Hatch  v.  Hatch,  31  Wkly.  Law  BuL  57;  Donald  v.  Elliott,  11  Misc. 
Rep.  120,  32  N.  Y.  Supp.  821- 

73  6  Edw.  L  c.  5. 

T4  1  Stim.  Am.  St  Law,  §  1332;  Smith  v.  Mattingly  (Ky.)  28  S.  W.  503. 
But  cf.  Danziger  v.  Silberthau  (Super.  Ct)  IS  N.  Y.  Supp.  350. 


§§    38-39)  ESTATES    PER    AUTRE    VIE.  67 

prising  one.^'  When  a  life  tenant  becomes  the  heir  of  the  one 
who  has  the  reversion  or  remainder  in  fee,  or  if  he  conveys  his  life 
interest  to  the  owner  of  such  reversion,  a  merger  takes  place,  and 
the  smaller  estate  has  lost  its  separate  existence.^'  Where  two  es- 
tates meet  in  the  same  person  and  in  the  same  right,  it  is  imma 
terial,  so  far  as  merger  is  concerned,  whether  the  union  is  pro- 
duced by  operation  of  law  or  by  act  of  party.  But  where  the  two 
estates  vest  in  the  same  person  in  different  rights  by  operation  of 
law,  merger  will  not  ensue.  When  the  union  occurred  by  act  of 
party  equity  will  not  allow  the  estates  to  merge,  though  they  would 
do  so  at  common  lawJ^  There  will  be  no  merger  unless  the  two 
estates  are  of  the  same  character.  Therefore,  an  equitable  life 
estate  will  not  merge  in  a  legal  fee  simple.^*  A  joint  interest  in 
a  life  estate  will  not  merge  in  the  reversion  in  severalty  owned  bj 
one  of  the  co-tenants. ''*  If  an  estate  per  autre  vie  is  assigned  to 
one  who  is  a  tenant  for  his  own  life,  it  will  merge,  since,  as  has 
been  seen,  the  estate  for  his  own  life  is  greater  than  the  estate  pei, 
autre  vie,** 

SAME— ESTATES  PER  AUTRE  VIE. 

38.  When  a  tenant  per  autre  vie  dies  before  the  cestui 
que  vie  without  having  disposed  of  his  estate,  the 
residue  of  the  estate  goes  to  his  heirs,  if  it  was 
given  to  the  tenant  and  his  heirs;   otherwise,  tho 

T»  Bradford  v.  Griffin,  40  S.  a  48S,  19  S.  E,  76;  Hovey  v.  Nellis,  98  MicJx 
374,  57  N.  W.  2.55. 

76  2  BL  Comm,  177;  Co.  Litt.  41b;  Mudd  v.  Mullican  (Ky.)  12  S.  W.  2635 
Webster  v.  Gilman,  1  Story,  499,  Fed.  Cas.  No.  17,335;  Gary  v.  Warner,  6?. 
Me,  571;  Davis  v.  Townsend,  32  S.  G  112,  10  S.  E.  837;  Bennett  v.  Trustee* 
of  M.  E.  Church,  66  Md.  36,  5  Atl.  291;  Shelton  v.  Hadlock,  62  Conn.  143f 
Han-ison  v.  Moore,  64  Conn.  344,  30  Atl.  55.  But  see  Browne  v.  Bockover.  SA 
Ya.  424,  4  S.  E.  745;    In  re  Butler's  Estate,  14  Pa.  Go.  Ct.  R.  667. 

TT  Edw.  Prop.  Land  (2d  Ed.)  130. 

"Martin  v.  Pine  (Sup.)  29  N.  Y.  Supp.  995.  For  equitable  estates,  se« 
post,  p.  251. 

7  9  See  Jameson  v.  Hayward,  106  Gal.  682,  39  Pac  1078.  And  see  post,  ji- 
332,  for  joint  estates. 

»o  Boykin  v.  Anerum,  28  S.  G.  486,  6  S.  E.  305.  But  see  Rosse's  Case,  ft: 
Coke,  13a;  Snow  v.  Boycott  [1892]  3  Ch.  110. 


68  E3TATK3    AS   TO   QUANTITY CONVENTIONAL    UFK    ESTATES.       (Ch.  5 

personal  representative  takes  it.  Before  the  statute 
of  29  Car.  II.,  the  residue  of  the  estate  belonged 
to  the  one  first  taking  possession,  who  was  called 
the  "  general  occupant." 
39.  The  incidents  of  life  estates  in  general  attach  to  es- 
tates per  autre  vie. 

There  was  a  common-law  rule  that,  if  the  tenant  of  an  estate  per 
autre  vie  died  before  the  cestui  que  vie,  whoever  first  took  posses- 
sion of  the  land  could  hold  it  for  the  remainder  of  the  term.  Such 
a  person  was  called  a  "general  occupant."  "  If,  however,  the  ten- 
ant had  leased  or  assigned  his  estate,®*  or  words  of  limitation,  as 
heirs  or  executor,  had  been  added  in  the  creation  of  the  estate, 
then  these  were  entitled  to  the  residue,  and  they  were  called  "spe- 
cial occupants."  "  But,  by  the  statute  of  29  Car.  II.,**  general 
occupancy  was  abolished,  and,  when  a  tenant  per  autre  vie  died 
without  having  disposed  of  his  estate,  if  the  term  was  not  limited 
to  the  heirs,  then  the  executor  took  the  residue,  holding  it  as  as- 
sets for  the  payment  of  debts."  This  act  also  gave  the  owner 
power  to  dispose  of  it  by  will."  The  usual  incidents  of  a  life  es- 
tate attach  to  an  estate  per  autre  vie.*'  And  in  some  states  ajjpor- 
tionment  of  rent  is  provided  for  by  statute.*' 

«i  Co,  Lltt.  41b;    2  Bl.  Comm.  258. 

■«2  Skelliton  v.  Hay,  Cro.  Jac.  554. 

«3  Mosher  v.  Yost,  33  Barb.  (N.  Y.)  277;  Salter  v.  Boteler,  Moore,  664; 
Bowles  V.  Poore,  Cro.  Jac.  282;  Low  v.  Burron,  3  P.  Wms.  262;  Doe  v. 
Luxton,  6  Teiuj  II.  289;  Atkinson  v.  Baker,  4  Term  R.  229;  Doe  v.  llobinson, 
8  Barn.  &  a  296. 

•*  Chapter  3.    And  see  1  Stim.  Am.  St  Law,  §  1310. 

«»  Doe  T.  Lewis,  9  Mees,  &  W.  662.  And  the  balance  for  the  estate.  Ripley 
T.  Waterworth,  7  Ves.  425.    But  see  Wall  v.  Byrne,  2  Jones  &  L.  118. 

8«  See,  also,  1  Stlm.  Am.  SL  Law.  S  1335. 

•T  Co.  LitL  41b, 

•  «  1  Stim.  Am.  St.  Law,  S  2023. 


{  40)  ESTATES    A3    TO    QUANTTTY LEGAL    LIFE    ESTATES.  69 

CHAPTER  VI. 

ESTATES   AS   TO   QUANTITY    (Ctontinued)— LEGAL   LIFE   ESTATES. 


40-^. 

Legal  Life  Estates— Estates  by  Marriage. 

42. 

Estate  during  Coverture. 

43-44. 

Curtesy. 

45. 

In  What  Estates. 

46. 

Incidents. 

47. 

How  Defeated. 

48. 

Statutory  Changes. 

49. 

Dower— Definition. 

50. 

In  What  Estates. 

51-52. 

Quarantine. 

53. 

Assignment. 

54. 

When  Value  Estimated. 

55. 

Method  of  Diyision. 

56. 

By  Whom  Assigned. 

57. 

Recovery  by  Action. 

68-59. 

Incidents, 

60. 

How  Defeated. 

61. 

Statutory  Changes. 

62. 

Homestead. 

63. 

Who  Entitled  to  Homestead. 

64. 

Duration   of    Exemption. 

65. 

In  What  Estates. 

66-67. 

Amount  of  Exemptiou. 

68. 

How  Acquired- 

69. 

Selection, 

70. 

How  Lost. 

71. 

Privileged  Debts, 

72. 

Federal  Homestead  Act. 

I^EGAL  LIFE  ESTATES— ESTATES  BY  MARRIAGE. 

40.  In  American  la"w  all  legal  life  estates  are  estates  by 
marriage,  except : 
EXCEPTION— With   the   possible   exception  of  estates 
tail  after  possibility  of  issue  extinct. 


JO 


ESTATES    A9   TO    QUANTITY — LEGAL    LIFE   ESTATES.  (Ch.  6 


41.  The  legal  life  estates  are : 

(a)  Estates  during:  coverture  (p.  70). 

(b)  Curtesy  (p.  73). 

(c)  Dower  (p.  83). 

(d)  Homestead  (p.  112). 

Legal  life  estates  have  already  been  defined  as  those  created  by 
act  of  law,  and  in  our  system  of  law  tliese  estates  all  arise  out  of 
the  marital  relation,  with  the  possible  exception  of  an  estate  tail 
after  possibility  of  issue  extinct,  which  is  by  some  classed  as  a 
legal  life  estate,  though  the  correctness  of  such  classification  seems 
doubtful.  The  partnership  ownership  of  real  property  by  husband 
and  wife,  which  exists  under  the  community  system,  comes  up  for 
consideration  more  properly  under  joint  estates,^  and  is  only  men- 
tioned here  because  it  is  in  a  sense  an  estate  by  marriage.' 

ESTATE  DURING  COVERTURE. 

42.  The   estate   during  coverture  is  the   right  which  the 

husband   acquires   at  common   law  to  the   chattels 
real   of  his  wife  which  he   reduces  to  possession, 
and  to  the  use  and  profits  of  her  realty. 
QUAIilFICATION— This  right  of  the  husband  is  quali- 
fied by : 

(a)  The  doctrine  of  separate  property. 

(b)  By  statutory  changes  in  nearly  all  the  states. 

By  the  rules  of  the  common  law,  a  husband  acquired  an  interest 
in  his  wife's  lands  then  owned  or  acquired  during  their  joint  lives, 
which  was  called  an  "estate  during  coverture."  "     This  interest 

1  Post,  p.  3o2.  The  joint  interest  of  husband  and  wife,  called  an  "estate  in 
entiioty,"  will  be  considered  later,  p.  oJT. 

2  Parties  In  contemplation  of  marriage  may  by  contract  fix  the  rights  which 
each  shall  hare  in  the  property  of  the  other  during  life,  or  which  the  sur- 
vivor shall  have  in  the  property  of  the  other  after  his  or  her  decease.  Des- 
noyer  v.  Jordan,  27  Minn.  295,  7  N.  W.  140. 

«  His  Interest  is  a  life  estate,  because  it  may  last  during  his  Ufe;  i.  e.  if  he 
•hould  die  before  his  wife.    Co.  Litt  351a  (ButL  &  H.  Notes)  note  1;  Babb  v. 


ESTATE    DURING   COVERTURE. 


71 


gave  him  complete  ownership  of  her  chattels  real,  provided  he  ai>- 
propriated  them  to  his  use  during  his  wife's  life.*  They  were  lia- 
ble for  his  debts,"*  and  he  could  sell,  mortgage,  or  dispose  of  them 
without  her  consent;  •  but,  if  no  such  disposition  of  the  chattels 
real  was  made,  and  she  survived  him,  then  they  were  hers  abso- 
lutely.'^ As  to  her  real  estate  proper,  except  future  estates,^  the 
husband  had  a  right  to  the  use  and  profits  of  it »  until  the  mar- 
riage was  terminated  by  death  or  divorce;^**  and  this  right  ex- 
cluded any  control  by  the  wife  during  his  life.  The  husband  could 
collect  the  rents  and  sue  in  his  name  for  any  injury  to  the  profits," 
but  for  injuries  to  the  corpus  of  the  estate  it  was  necessary  to  join 
the  wife.^2  He  and  his  lessees  were  entitled  to  emblements.^* 
At  common  law,  although  the  husband,  being  a  tenant  for  life, 
could  not  commit  waste,^*  still  the  wife's  remedy  was  imperfect, 

Perley,  1  Me.  6;  Mdvln  v.  Proprietors,  16  Pick.  (Mass.)  IGl;  Nunn's  Adm'rs 
V.  Givhan's  Adm'r,  45  Ala.  370. 

*  Riley's  Adm'r  v.  RUey,  19  N.  J.  Eq.  229;  Packer  v.  Wyndham,  Prec.  Ch. 
412;  Sym's  CJase,  Cro.  Eliz.  33;  Loftus'  Case,  Id.  279;  Grute  v.  Locroft,  Id. 
287;    Daniels  v.  Richardson,  22  Pick.  (Mass.)  565. 

6  Mattocks  V.  Stearns,  9  Vt  326. 

8  Meriwether  v.  Booker,  5  Litt.  (Ky.)  254;  Appleton,  C.  J^  In  Allen  t. 
Hooper,  50  Me.  374;  Robertson  v.  Norris,  11  Q.  B.  916.  Bnt  not  by  will, 
if  he  die  first     Ck).  Litt.  351a, 

7  Co.  Litt.  351a;    Riley's  Adm'r  v.  Riley,  19  N.  J.  Eq.  229. 

8  See  post,  p.  278. 

8  Chancey  v.  Strong,  2  Root  (Conn.)  369;  Burleigh  v.  Coffin,  22  N.  H.  118; 
Lucas  V.  Rickerich,  1  Lea  (Tenn.)  726;  Royston  v.  Royston,  21  Ga,  161; 
Bishop  V.  Blair,  36  Ala.  80;  Gray  v.  Mathis,  7  Jones  (N.  C.)  502;  Meriwether 
V.  Howe,  48  Mo.  App.  148.  And  he  may  assign  his  right  Edrington  v.  Har- 
per, 3  J.  J.  Marsh.  (Ky.)  353;   Bailey  v.  Duncan,  4  T,  B.  Mon.  (Ky.)  256. 

10  Co.  Litt  351a;  Burt  v.  Hurlburt,  16  Vt  292;  Barber  v.  Root  10  Mass. 
260.  Separation  does  not  terminate  his  right  Haralson  y.  Bridges,  14  IlL 
37;    Van  Note  v.  Downey,  28  N.  J.  Law,  219. 

11  Decker  v.  Livingston,  15  Johns.  (N.  Y.)  479;  Mattocks  v.  Stearns,  9  Vt 
326;  Fairchild  v.  Chastelleux,  1  Pa.  St  176;  Fairchild  v.  Ohaustelleux,  8 
Watts  (Pa.)  412;    Dold  v.  Geiger's  Adm'r,  2  Grat  (Va.)  98. 

12  2  Kent  Comm.  131;  Melvin  v.  Proprietors,  16  Pick.  (Mass.)  161;  Babb 
V.  Perley,  1  Me,  6;    Bratton  v.  Mitchell,  7  Watts  (Pa.)  113. 

13  Bennett  v.  Bennett,  34  Ala.  53;  Stroebe  v.  Fehl,  22  Wis.  337;  Spencer 
V.  Lewis,  1  Houst  (Del.)  223. 

14  Stioebe  v.  Fehl,  22  Wis.  337, 


72  ESTATKS    A3    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch     6 

becanse  she  could  not  sue  him.^*  But  he  migrht  be  restrained  by 
injunction.**  When  waste  was  committed  by  the  husband's  as- 
si-^m-e,  tills  difficulty  as  to  the  remedy  did  not  exist.*''  Full  power  of 
alienation,  including  liability  for  debts,  resided  in  the  husband  to 
the  extent  of  his  life  interest,"  but  he  was  not  allowed  to  prej- 
udice his  wife's  inheritance  in  any  way.*' 

Eijuitahl-e  Doctrine — Separate   Estate. 

As  to  chattels  real  and  personal  property  of  the  wife  in  general, 
courts  of  equity  adopted  a  rule  that,  when  a  husband  sought  their 
aid  in  reducing  such  property  to  his  possession,  they  might  compel 
him  to  settle  a  reasonable  amount  for  the  support  of  the  wife  and 
her  children.  This  was  called  her  "equi+y  to  a  settlement."  '•  So 
courts  of  equity  allow  a  wife  to  own  and  manage  her  land  as  if 
she  were  unmarried  whenever  it  is  settled  on  her  in  trust  for  her 
"sole  and  separate  use."  **  Other  expressions  are  also  adequate 
to  effect  the  purpose." 

i»  Davis  V.  Gilliam,  5  Ired.  Eq.  (N.  a)  308;  Babb  v.  Perley,  1  GreenL  (Me.) 
6.    Cf .  1  Bish.  Mar.  Worn.  393. 

i«  See  Mellen,  C.  J.,  in  Babb  v.  Perley,  1  GreenL  (Me.)  9.  Cf.  Stroebe  v. 
Fehl,  22  Wis.  337. 

IT  Stroebe  v.  Fehl,  22  Wis.  337;  Davis  v.  Gilliam,  5  Ired.  Eq.  (N.  C.)  308; 
D*Jamatte  v.  Allen,  5  Grat.  (^''a.)  499.     Cf.  Ware  v.  Ware,  6  N.  J.  Eq.  117. 

isTrask  ▼.  Patterson,  29  Me.  499;  Butterfield  v.  Beall,  3  Ind.  203;  Cole- 
man V.  Satterfield,  2  Head  (Tenn.)  259. 

19  Butterfield  v.  Beall,  3  Ind.  203;  Coleman  v.  Satterfield,  2  Head  (Tenn.) 
2.59. 

«o  Barron  v.  Barron,  24  Vt.  375;  Hall  v.  Hall,  4  Md.  Ch.  283;  White  v.  Gonld- 
In's  Ex'rs,  27  Grat  (Va.)  491;  Beeman  v.  Cowser,  22  Ark.  429;  Kenny  v. 
Udall,  5  Johns.  Ch.  (N.  Y.)  4G4.  Cf.  Wiles  v.  Wiles,  3  Md.  L  See,  further, 
Schouler,  Husb.  &  W.  5§  160-162;  Fetter,  Eq.  37. 

«i  Brandt  v.  Mlckle,  28  Md.  436;  Beeman  v.  Cowser,  22  Ark.  429;  Pollard 
V.  Merrill,  15  Ala.  169;  MoiTison  v.  Thistle,  67  Mo.  596;  Porter  v.  Bank,  19 
Vt  410. 

ii  Prout  V.  R<3by,  15  WalL  471;  Brandt  v.  Mickle,  28  Md.  436;  Stuart  v. 
Kissara,  2  Barb.  (N.  Y.)  493;  Floumoy  v.  Floumoy,  86  Cal.  286,  24  Pac.  1012; 
Atwood  v.  Dolan,  34  W.  Va.  563,  12  S.  E.  688.  Cf.  Buck  v.  Wroten,  24  Grat 
fVa.)  250;  In  re  Quinn's  Estate,  144  Pa,  St.  444,  22  Atl.  965.  But  for  ex- 
pressions which  are  not  sufficient,  see  Scott  v.  Causey,  89  Ga.  749,  15  S.  E. 
650;    liart  v.  Leete,  KM  Mo.  315,  15  S.  W.  976;    Warren  v.  Costello,  109  Mo. 


§§  43-44)  CDBTE8Y.  73 

Statutory  Changes. 

The  importance  of  the  equitable  doctrine  is,  however,  much  les- 
sened in  this  country  by  "Married  Women's  Acts"  in  all  the  states, 
which  have  made  great  changes  in  the  law  on  this  subject.  In 
many  states  the  husband's  estate  during  coverture  is  abolished, 
and  the  wife  holds  her  realty  as  if  a  feme  sole,  while  in  others  the 
changes  have  not  been  so  complete."  Reference  must  be  made 
in  each  state  to  the  statutes  in  force. 

CUBTESY. 

43.  By  common   laTv  a  husband    is   entitled  to  curtesy, 

which  is  an  estate  for  the  life  of  the  husband  in  all 
the  -wife's  realty,  provided  the  following  conditions 
concur : 

(a)  Valid  marriage. 

(b)  Issue  born  alive  and  capable  of  inheriting. 

(c)  Seisin  in  deed  of  the  wife  during  coverture. 

(d)  Death  of  wife  before  husband. 

44.  Curtesy    is    said   to   be  initiate   w^hen    issue   is  born 

alive,  and  consummate  at  the  wife's  death. 

The  estate  in  the  wife's  realty  which  the  husband  acquired  by 
marriage  was  an  estate  for  their  joint  lives,^*  and  the  death  of 
either  husband  or  wife  terminated  it,  but  the  right  of  the  husband 
in  his  wife's  realty  was  enlarged,  by  the  birth  of  issue  capable  of 
inheriting,  into  an  estate  for  the  husband's  life.^"     This  was  called 

338,  19  S.  W.  29.  And  see  Gaston  v.  Wright,  83  Tex.  282,  18  S.  W.  5TG; 
Pickens'  Ex'rs  v.  Kniseley,  36  W.  Va,  794,  15  S.  E.  997;  Cliff  ton  v.  Anderson, 
47  Mo.  App.  35. 

*3  1  Stim.  Am.  St  Law,  art  642;  Williams,  Real  Prop.  (17th  Ed.)  Am.  note, 
373;    1  Wasbb.  Real  Prop.  (5th  Ed.)  346,  note;    Schouler,  Husb.  &  W.  248; 

2  Bish.  Mar.  Worn.  5. 

2*  Melvin  y.  Proprietors,   16  Pick.  (Mass.)  161;    Polyblank  v.   Hawkins,  1 
Doug.  329. 
2  5  Co.  Utt  §  30a;    Schermerhon  v.  Miller,  2  Cow.  (N.  Y.)  439;  Adair  v.  Lott, 

3  Hill  (N.  Y.)  182;  Rawlings  v.  Adams,  7  Md.  26;  Foster  v.  Marshall,  22  N. 
H.  491;  Buckworth  v.  Thirkell,  3  Bos.  &  P.  652,  note.  The  husband  and 
wife  are  seised  jointly.  Guion  y.  Anderson,  8  Humph.  (Tenn.)  298;  Junction 
E.  Ca  y.  Harris,  9  Ind.  184;   Wass  v.  Bucknam,  38  Me.  356. 


74  ESTATES    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   6 

"curtesy,"  or,  in  the  older  books,  "an  estate  by  the  curtesy  of 

England."  " 

Marriage, 

The  first  requisite  of  curtesy  is  lawful  marriage.     If  the  mai^ 
riage  was  absolutely  void,  no  curtesy  will  attach ;  but  if  it  is  only 
voidable,  and  is  not  annulled  during  the  wife's  life,  then  the  hus- 
band will  take  his  curtesy.*^ 
Birth  of  Issxie — Ourtesy  Initiate. 

The  husband's  right  to  curtesy  is  said  to  be  initiate  as  soon  as 
tlltre  is  issue  of  the  marriage."  But  such  issue  must  be  capable 
of  inheriting  the  mother's  estate.  Thus  the  birth  of  a  daughter 
would  give  the  husband  no  curtesy  in  lands  of  which  the  wife  was 
tenant  in  tail  male,  because  the  daughter  could  not  inherit  the 
estate."  And  the  issue  must  be  bom  alive  ^°  and  during  the 
wife's  life;  that  is,  it  will  not  be  sufficient,  to  give  curtesy,  if  the 
mother  die  in  childbirth,  and  the  child  is  afterwards  taken  from 
the  womb  by  the  Ca?sarcan  operation.'^  It  is  immaterial  whether 
the  birt±  of  issue  is  before  or  after  the  wife's  estate  is  acquired." 

2«2  BL  CkHmn.  126;  Alexander  v.  Warrance,  17  Mo.  228.  There  Is  con- 
siderable difference  of  opinion  as  to  the  origin  of  curtesy.  1  Washb.  Real 
Prop.  (5th  Ed.)  p.  170;  Wright,  Ten.  192,  193;  2  Bl.  Comm.  126.  Many 
questions  which  might  arise  in  connection  with  curtesy  will  be  found  dis- 
cussed In  treating  of  dower  (post,  p.  S3).  The  rules  stated  there  may  be 
applied  by  analogy  to  the  estate  by  curtesy  if  similar  questions  should  arise. 
27  2  Bl.  Comm.  127;  1  Washb,  Real  Prop.  (5th  Ed.)  172;  Wells  v.  Thomp- 
son, 13  Ala.  793. 

2  8  Schermerhom  v.  Miller,  2  Cow.  (N.  Y.)  439;  Comer  v.  Chamberlain,  6 
Allen  (Mass.)  166;  Ryan  v.  Freeman,  36  Miss.  175.  A  child  bom  out  of  wed- 
lock, but  made  legitimate  by  a  subsequent  marriage,  gives  curtesy.  Hunter 
V.  WTiitworth,  9  Ala.  965. 

2  9  Day  V.  Cochran,  24  Miss.  261;  Heath  v.  White,  5  Conn.  228,  236;  Barker 
V.  Barker,  2  Sim.  249;    Sumner  v.  Partridge,  2  Atk,  46. 

80  Brock  V.  Kellock,  30  Law  J.  Ch.  498;  GofE  v.  Anderson,  91  Ky.  303,  15 
S.  W.  866;  In  re  Winne,  1  Lans.  (N.  Y.)  508;  Ryan  v.  Freeman,  36  Miss. 
175;  Doe  T.  Roe,  5  Houst  (DeL)  14;  Goff  v.  Anderson,  91  Ky.  303,  15  S.  W. 
866. 
31  Co.  Litt  29b;  MarseUis  v.  Thalhimer,  2  Paige  (N.  Y.)  42. 
«2  Co.  Litt  29b;  2  Bl.  Comm.  128;  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74; 
Comer  v.  Chamberlain,  6  Allen  (^lass.)  166;  Guion  v.  Anderson,  8  Humph. 
(Tenn.)  307;  Heath  v.  White,  5  Comi.  236;  Witham  v.  Perkins,  2  Me.  400. 
Cf.  Hathon  v.  Lyon,  2  Mich.  93. 


|§  43-44)  cuETEST.  75 

If  curtesy  has  once  become  initiate,  it  will  not  be  defeated  by  the 
subsequent  death  of  the  issue,  either  in  the  mother's  lifetime  or 
after  her  death."  In  several  states  the  birth  of  issue  is  made  un- 
necessary by  statute,^*  and  in  Pennsylvania  the  husband  has  cur- 
tesy if  the  issue,  had  any  been  bom,  could  have  inherited." 
Seisin  of  Wife, 

By  the  common-law  rule,  in  order  that  the  husband  might  have 
curtesy,  it  was  essential  that  the  wife  be  seised  in  deed  of  fact,^''  or, 
less  accurately,  that  she  have  actual  seisin,'^  However,  the  rule  as 
to  seisin  in  deed  has  been  relaxed,"  and  seisin  in  law  is  held  suffi- 
cient to  give  curtesy  in  many  states,  particularly  in  the  case  of  the 
wife's  taking  by  desceilt,*'  and  where  the  land  is  wild  and  unoc- 
cupied.*"    The  seisin  of  a  lessee  is  regarded  as  seisin  of  the  wife.*^ 

3  3  Co.  Litt  29b;  2  BL  Comm.  128;  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74; 
Heath  v.  White,  5  Conn.  235;   Foster  v.  MarshaU,  22  N.  H.  491. 

«*  1  Stim.  Am.  St  Law,  §  3301  B;  Kingsley  v.  Smith,  14  Wis.  3G0. 

S5  BrighUy,  Purd.  Dig.  Pa.  "Intestates,"  4. 

3  6  The  reason  assigned  for  this  is  that  the  husband  can  at  any  time  perfect 
the  wife's  seisin  by  making  an  entry.  2  Ham.  BL  Gomm.  233,  note  32;  Van- 
arsdall  v.  Fauntleroy's  Heirs,  7  B.  Mon.  (Ky.)  401;  Mercer  v.  Selden,  1  How. 
37.     For  the  difference  between  seisin  in  fact  and  in  law,  see  ante,  p.  31. 

3  7  Co.  Litt  29a;  Stinebaugh  v.  Wisdom,  13  B.  Mon,  (Ky.)  467;  Petty  v. 
Molier,  15  B,  Mon.  (Ky.)  591;  Mercer  v.  Selden,  1  How.  37;  Den  v.  Demarest 
21  N.  J.  Law,  525;  Parker  v.  Carter,  4  Hare,  400,  416;  Davis  v.  Mason,  1  Pet 
507.     Contra,  Bush  v.  Bradley,  4  Day  (Conn.)  298. 

3  8  Wass  v.  Bucknam,  38  Me.  356;  Reaume  v.  Chambers,  22  Mo.  3t5,  54;  Bush 
V.  Bradley,  4  Day  (Conn.)  208;  Kline  v.  Beebe,  6  Conn.  494;  Mitchell's  Lessee 
v.  Ryan,  3  Ohio  St  377;  Powell  v.  Gossom,  18  B,  Mon.  (Ky.)  179;  Ellsworth 
V.  Cook,  8  Paige  (N.  Y.)  643;  INIercer  v.  Selden,  1  How.  37;  McCorry  v.  King's 
Heii-s,  3  Humph.  (Term.)  267;  Adams  v.  Logan,  6  T.  B.  Mon.  (Ky.)  175;  Wat- 
kins  V.  Thornton,  11  Ohio  St  367;  Ilabb  v.  Griffin,  26  Miss.  579;  Childers  v. 
Bumgamer,  8  Jones  (N.  C.)  297. 

8  9  Borland  v.  Marshall,  2  Ohio  St  308;  Day  v.  Cochran,  24  Miss.  261;  Adair 
v.  Lott  3  Hill  (N.  Y.)  182;  Jackson  v.  Johnson,  o  Cow.  (N.  Y.)  74;  Chew  v. 
Commissioners,  5  Rawle  (Pa.)  1(50;  Stephens  v.  Himae,  25  Mo.  S49;  Harvey  v. 
Wickham,  23  Mo.  115;  Carr  v.  Giveas,  9  Bush  (Ky.)  679;  Enls  v.  Dittey  (Ky.) 
23  S.  W.  366;  Merritf  s  Lessee  v.  Home,  5  Ohio  St  307;  Eager  v.  Pumivall,  17 
Ch.  Div.  115;  Withers  v.  Jenkins,  14  S.  C.  597;  McKee  v.  Cottle,  6  Mo.  App. 
416. 

*o  Jackson  v.  Sellick,  8  Johns.  (N.  Y.)  262;  Green  v.  Liter,  8  Cranch,  249; 
Davis  V.  Mason,  1  Pet  503;  Mettler  v.  MUler,  129  ILL  630,  22  N.  E.  529;   Barr 

*i  See  note  41  on  following  page. 


76  ESTATKS    AS    TO    QUANTITY LEGAL    LIFB    ESTATES,  (Ch.   6 

Possession  by  a  grantee  of  the  husband  is  suflQcient  to  give  cur- 
tesy."     The  rule  as  stated  above  does  not  apply  to  incorporeal 
hereditaments,  of  which  no  actual  possession  is  possible.*' 
Death  of  Wife — Curtesy  Consummate. 

If  the  wife  dies  before  the  husband,  his  right  to  curtesy  is  at  once 
consummate,  and  his  estate  vests  immediately,  without  any  assign- 
ment or  other  formality."  Curtesy,  having  vested  in  the  husband, 
cannot  be  defeated  by  a  disclaimer." 

SAME— IN  WHAT  ESTATES. 

45.  The  husband  has  curtesy  in  the  following  estates; 

(a)  In  estates  of  inheritance. 

(b)  In  determinable  estates,  when   they  are   determined 

by  a  shifting  use  or  executory  devise,  and  in  all 
cases  until  they  are  defeated. 

(c)  In  equitable  estates. 

(d)  In  estates  in  expectancy,  when  they  vest  in  posses 

sion  during  the  wife's  life. 

(e)  In  joint  estates,  except  joint  tenancies. 

Estates  of  Inheritance. 

A  husband,  as  haa  been  seen,  has  curtesy  only  in  estates  of  which 
the  wife  is  seised  during  the  coverture.     The  estate  of  the  wife 

V.  Galloway.  1  McLean,  47G,  Fed.  Cas.  No.  1,037;  Den  v.  Wanett,  10  Ired.  (N. 
C.)  440;  McDaniel  v.  Grace,  15  Ark.  4G5;  Day  v.  Cochran,  24  Miss.  261;  Clay 
T.  White,  1  Munf.  (Va.)  162;  De  Grey  v.  Richardson,  3  Atk.  469;  I^wry's 
Le.ssce  v.  Steele,  4  Ohio,  170;  Wells  v.  Thompson,  13  Ala.  793;  Malone  v.  Mc- 
Laurin,  40  Miss.  161.    Contra,  Neely  v.  Butler,  10  B.  Mon.  (Ky.)  48. 

*i  De  Grey  v.  Richardson,  3  Atk.  469.  Or  of  a  tenant  at  sufferance.  Tayloe 
7.  Gould.  10  Barb.  (N.  Y.)  3S8;  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74;  Lowry's 
Lessee  v.  Stt>ele,  4  Ohio,  170;  Green  v.  Liter,  8  Cranch,  24.5;  Powell  v.  Gossom, 
IS  B.  Mon.  (Ky.)  179;  Day  v.  CocJiran,  24  Miss.  261;  Carter  v.  Williams,  S 
Ired.  Eq.  (N.  C.)  177;    Wells  v.  Thompson,  13  Ala.  793. 

"  Vanarsdall  v.   Fauntleroy's  Heirs.   7  B.  Mon.  (Ky.)  40L 

*3  Co.  LItt  29a;  Davis  v.  Mason.  1  Pet.  507;  Jackson  v.  Sellick,  8  Johns.  (N. 
Y.)  262;    Buck  worth  v.  Thirkell,  3  Bos.  &  P.  652,  note. 

"  Co.  Lltt  30a;  2  BL  Comm.  128.  And  a  disclaimer  by  him  will  not  divest 
his  estate.     Watson  v.  Watson,  13  Conn,  83. 

*8  Watson  V.  Watson,  13  Conn.  83. 


§    45)  CURTESY IN    WHAT    ESTATES.  77 

must  also  be  one  of  inheritance.**  Otherwise,  it  would  be  at  an 
end  with  the  death  of  the  wife,  and  so  there  would  be  nothing  left 
out  of  which  the  husband  could  have  curtesy.  That  is,  a  fee  sim- 
ple or  a  fee  tail  in  the  wife  gives  the  husband  curtesy,  but  a  life 
estate  does  not. 
Determinable  Estates, 

There  is  considerable  confusion  in  the  cases  as  to  whether  there 
is  curtesy  in  determinable  estates,  which,  as  will  be  seen,*^  are 
estates  that  may  come  to  an  end  before  their  natural  termination. 
As  to  such  estates,  it  will  be  impossible  to  do  more  than  to  state 
the  rule  as  it  now  seems  to  be  recognized  by  the  weight  of  author- 
ity. When  the  estate  which  arises  and  cuts  off  the  wife's  inter- 
est is  a  shifting  use,**  or  executory  devise,*'  the  husband  has 
curtesy.  When  the  limitation  over  takes  effect  in  some  other  way, 
there  is  no  right  to  curtesy."***  If  the  event  which  is  to  cut  off  the 
wife's  estate  has  not  happened  at  her  death,  the  husband  takes 
his  curtesy  until  the  happening  of  the  event,  no  matter  what  the 
form  of  limitation  of  the  estate  may  be. 
Equit<ihle  Estates. 

Curtesy  attaches  to  the  beneficial  interest  of  the  wife  in  equita- 
ble estates,  as  well  as  to  legal  interests."*^     But  an  equitable  es- 

*«  Barker  v.  Barber,  2  Sim.  249;  Sumner  v.  Partridge,  2  Atk.  47;  Jarmey  v. 
Sprigg,  7  Gill  (Md.)  197.  If  the  wife  was  tenant  in  tail,  and  died  without 
issue  stUl  the  husband  would  take  curtesy,  because  the  estate  had  been  one  of 
Inheritance.  Parne's  Case,  8  Coke,  34;  Buchannan's  Lessee  v.  Sheffer,  2  Yeates 
(Pa.)  374;  Hay  v.  Mayer,  8  Watts  (Pa.)  203;  Buck  worth  v.  Thirkell,  3  Bos.  «& 
P.  652,  note;    Holden  v.  Wells  (II.  1.)  31  AtL  265. 

4T  Post,  p.  1G9. 

*8  Post,  p.  300. 

*»  Post,  p.  300, 

»•  11  Am.  Jur.  55;  Grout  t.  Townsend,  2  Hill  (N.  Y.)  554;  Wright  v.  Herron. 
€  Rich.  Eq.  (S.  C.)  406;  Buckworth  v.  Thirkell,  3  Bos.  &  P.  G52,  note;  Moody 
T.  King,  2  Bing.  447;  Hatfield  t.  Sneden,  54  N.  Y.  285;  Evans  v.  Evans,  9  I'a. 
St.  190;  McMasters  v.  Negley,  152  Pa,  St  303,  25  Atl.  641;  Webb  v,  Trustot-s. 
90  Ky.  117,  13  S.  W.  362;  Withers  v.  Jenkins,  14  S.  C.  597;  Thornton's  Ex'rs 
V.  Krepps,  37  Pa.  St.  391;  Weller  v.  Weller.  28  Barb.  (N.  Y.)  588;  Harvey  v. 
Brisbin,  143  N.  Y.  151,  38  N.  B.  108.  But  see  McMasters  v.  Negley,  152  Pa. 
St.  303,  25  Atl.  641. 

61  Davis  V.  Mason,  1  Pet.  503;  Payne  v.  Payne,  11  B.  Mon.  (Ky.)  138; 
Young  T.  Langbein,  7  Hun  (N.  Y.)  151;    Alexander  v.  Warrance,  17  Mo.  228; 


78  ESTATES    AS    TO    QDANTITY LEGAL    LIFE   ESTATES.  (Cll.   6 

tate  may  be  so  limited  to  the  wife  tliat  the  husband  will  not  have 
curtesy.'* 

Dubs  V.  Dubs,  31  Pa.  St  149;  Ege  v.  Medlar,  82  Pa.  St  86;  RawUngs  v. 
Adams,  7  Md.  2G;  Pierce  v.  Hakes,  23  Pa.  St  231;  Baker  v.  Heiskell.  1  Cold. 
(Tenn.)  641;  Norman's  Ex'x  v.  Cunuingham,  5  Grat  (Va.)  63;  Tillinghast  v. 
Cogge.sliaJl,  7  R.  1.  383;  Robie  v.  Chapman,  59  N.  H.  41;  Nightingale  v.  Hid- 
den, 7  R,  L  115;  Sentill  v.  Robeson,  2  Jones,  Eq.  (N.  a)  510;  Gushing  v. 
Blake,  30  N.  J.  Eq.  689;  Carson  v.  Fuhs.  131  Pa.  St  250,  18  AtL  1017;  GU- 
raore  v.  Burch,  7  Or.  374;  Ogden  v.  Ogden,  60  Ark.  70,  28  S.  W.  796.  Receipt 
by  the  wife  of  the  rents  and  profits  is  a  sufficient  seisin.  Hearle  v.  Green- 
bank,  3  Atk.  717;  Withers  v.  Jenkins,  14  S.  C.  597;  Powell  v.  Gossom,  IS  B. 
Mon.  (Ky.)  179;  Gushing  v.  Blake,  80  N.  J.  Eq.  689;  Payne  v.  Payne,  11  B. 
Mon.  (Ky.)  138;  Taylor  v.  Smith.  54  Miss.  50;  Sentill  v.  Robeson,  2  Jones, 
Eq.  (N.  C.)  510.  So  the  husband  may  have  cmtesy  in  the  proceeds  of  sale 
of  tlie  wife's  land,  Clepper  v.  Livergood,  5  Watts  (Pa.)  113;  Houghton  v. 
Hapgood,  13  Pick.  (Mass.)  154;  Forbes  v.  Smith,  5  Ired.  Eq.  (N.  a)  369; 
Dunscomb  v.  Dunscomb,  1  Johns.  Ch.  (N.  Y.)  508;  Williams'  Case,  3  Bland 
(Md.)  ISO;  and  in  money  directed  to  be  laid  out  in  land,  Sweetapple  v.  Bin- 
don,  2  Vem.  53G;  Dodson  v.  Hay,  3  Brown,  Ch.  404;  Cunningham  v.  Moody, 
1  Ves.  Sr.  174;  Watts  v.  Ball,  1  P.  Wms,  108;  Chaplin  v.  Chaplin,  3  P.  Wms, 
229;  Casbome  v.  Scarfe,  1  Atk-  603.  By  the  weight  of  authority  there  is 
curtesy  In  estates  held  by  the  wife  to  her  separate  use.  Winkler  v.  Wink- 
ler's Ex'rs,  18  W.  Va.  455;  TiUinghast  v.  Coggeshall,  7  R.  L  383;  Nightingale 
V.  Hidden,  Id.  115;  Sentill  v.  Robeson,  2  Jones,  Eq.  (N.  C.)  510;  Garter  v. 
Dale,  3  Lea  (Tenn.)  710;  Chapman  v.  Price,  83  Va,  392,  11  S.  E.  879;  Rau- 
tenbusch  v.  Donaldson  (Ky.)  18  S.  W.  536;  Nicrosi  v.  Phillippi,  91  Ala.  299, 
8  South.  561;  McTigue  v.  McTigue,  116  Mo.  138,  22  S.  W.  501.  Contra,  Coch- 
ran V.  O'Hem,  4  Watts  &  S.  (Pa.)  95;  Luntz  v.  Greve,  102  Ind.  173,  26  N.  E. 
128.  And  see  HutchLngs'  Adm'r  v.  Bank  (Va.)  17  S.  E.  477.  But  thfere  is 
no  curtesy  when  the  wife  holds  the  bare  legal  title.  Chew  v.  Commissioners, 
5  Rawle  (Pa.)  160;  Welch's  Heirs  v.  Chandler,  13  B.  Mon.  (Ky.)  431.  Nor 
has  the  husband  of  a  mortgagee  curtesy,  unless  the  mortgage  has  been  fore- 
closed.    Chaplin  v.  Chaplin,  7  Vin.  Abr.  156,  pL  23. 

B2  Pool  V.  Blakie,  53  lU.  495;  Stokes  v.  McKibbm,  13  Pa.  St  267;  Payne 
V.  Payne,  11  B.  Mon.  (Ky.)  138;  Carter  v.  Dale,  3  Lea  (Tenn.)  710;  Cochran 
V.  O'Hem,  4  Watts  &  S.  (Pa.)  95;  Rigler  v.  Cloud,  14  Pa.  St  361;  Chapman 
V.  Price,  83  Va.  392,  11  S.  E.  879;  Clark  v.  Clark,  24  Barb.  (N.  Y.)  582;  With- 
ers V.  Jenkins,  14  S.  C.  597;  Gushing  v.  Blake,  30  N.  J.  Eq.  689;  Ege  v.  Med- 
lar, 82  Pa.  St  86;  Waters  v.  Tazewell,  9  Md.  29L  But  see  Dubs  v.  Dubs, 
31  Pa.  St  149;  Nightingale  v.  Hidden,  7  R,  I.  115.  If  the  husband  conveys 
land  to  the  wife,  he  has  no  curtesy  In  it  Sayers  v.  Wall,  26  Grat  (Va.)  374; 
LcAke  V.  Benson,  29  Grat  (Va.)  153;  Irvine  v.  Greever,  32  Grat  (Va.)  411; 
Dugger  V.  Dugger,  84  Va.  130,  4  S.  E.  171.  Contra,  Frazer  v.  Hightower,  12 
Heisk.  (Tenn.)  94;  Cnshing  v.  Blake,  29  N.  J.  Eq,  399. 


§   46)  CURTESY INCIDENTS.  79 

Estates  in  Expectancy. 

The  estate  must  have  been  one  in  possession  during  the  wife's 
life.  So  there  can  be  no  curtesy  in  a  reversion  or  a  remainder," 
unless  the  prior  particular  estate  determined  before  her  death, 
and  the  wife's  estate  thereby  became  vested  in  possession. ''^  This 
will  be  clearer  after  estates  in  expectancy  have  been  discussed. ^^ 

Joint  Estates. 

The  husband  has  curtesy  in  estates  held  by  his  wife  as  a  tenant 
in  common  or  in  coparcenary,^'  but  not  in  her  estates  in  joint 
tenancy." 

SAME— INCIDENTS. 

46.  Estates  by   curtesy  have  the  usual   incidents    of  life 
estates. 

6«  Adair  v.  Lott,  3  Hill  (N.  Y.)  182;  Adams  v.  Logan,  6  T.  B.  Mon.  (Ky.) 
175;  Stoddard  v.  Gibbs,  1  Sumn.  263,  Fed.  Cas.  No.  13,468;  Lowry's  Lessee 
V.  Steele,  4  Ohio,  170;  Watkins  v.  Thornton,  11  Ohio  St.  367;  Chew  v.  Com- 
missioners, 5  Rawle  (Pa.)  IGO;  Hitner  v.  Ege,  23  Pa.  St  305;  Orford  v.  Ben- 
ton, 36  N.  H.  395;  Planters'  Bank  v.  Davis,  31  Ala.  626;  Malone  v.  McLaurin, 
40  Miss.  161;  Ferguson  v.  Tweedy,  43  N.  Y.  543;  Shores  v.  Carley,  8  Allen 
(Mass.)  425;  Manning's  Case,  8  Coke,  96;  Robertson  v.  Stevens,  1  Ired.  Eq. 
(N-  a)  247;  Tayloe  v.  Gould,  10  Barb.  (N.  Y.)  388;  Reed  v.  Reed,  3  Head 
(Tenn.)  491;  Stewart  v.  Barclay,  2  Bush  (Ky.)  550;  De  Grey  v.  Richardson, 
3  Atk.  469.  There  is  curtesy  in  a  reversion  after  a  term  of  years,  because 
the  seisin  Is  then  in  the  wife.     Withers  v.  Jenkins,  14  S.  C.  597. 

54  Kent  V.  Hartpoole,  3  Keb.  731;  Doe  v.  Scudamore,  2  Bos.  &  P.  294; 
Boothby  v.  Vernon,  2  E<i.  Cas.  Abr.  728,  9  Mod.  147;  Hooker  v.  Hooker,  Cas.  t 
Hardw.  13;  Todd  v.  Oviatt,  58  Conn.  174,  20  Atl.  440;  WebstCT  v.  Ells- 
worth, 147  Mass.  602,  18  N.  E.  569;  Moore  v.  Calvert,  6  Bush  (Ky.)  356;  Hat- 
field V.  Sneden,  54  N.  Y.  280;  Gentry  v.  Wagstaff,  3  Dev.  (N.  a)  270;  Hitner 
V.  Ege,  23  Pa.  St  305;  Keerl  v.  Fulton,  1  Md.  Cb.  532;  Mackey  v.  Proctor,  12 
B.  Mon.  (Ky.)  433;  Prater  v.  Hoover,  1  Cold.  (Tenn.)  544;  Watkins  v.  Thorn- 
ton, 11  Ohio  St  367;  Shores  v.  Carley,  8  Allen  (Mass.)  425;  Tayloe  v.  Gould, 
10  Barb.  (N.  Y.)  388. 

6  6  Post,  p.  278. 

e«  Sterling  v.  Penlington,  2  Eq.  Cas.  Abr.  730;  Wass  v.  Bucknam,  38  Me, 
360;  Vanarsdall  v.  Fauntleroy's  Heirs,  7  B.  Mon.  (Ky.)  401;  Can*  r.  Givens, 
9  Bush  (Ky.)  679. 

»T  CJo,  Litt  §  45.     As  to  what  are  joint  estates,  see  post,  p.  332, 


80  ESTATES    AS   TO    QOANTTTY LEGAL    LIFK    ESTATES.  (Ch.   6 

The  husband  takes  his  curtesy  subject,  of  course,  to  all  existing 
incumbrances  on  the  land."  And  on  the  estate  becoming  initiate, 
the  husband's  interest  is  liable  for  his  debts,"  or  he  can  sell  and 
dispose  of  it,  as  he  may  see  fit."  No  alienation  of  the  husband 
alone  is  efToetual  for  a  longer  period  than  his  life,"  nor  does  the 
disseisin  of  the  husband  bar  the  rights  of  the  wife's  heirs  or  dev- 
isees.** The  usual  incidents  of  life  estates  attach  to  curtesy,  such 
as  liability  for  waste,  and  the  right  to  emblements  and  estovers." 
After  the  termination  of  the  husband's  estate  by  his  death,  the 
realty  is  disposed  of  according  to  the  testamentary  direction  of  the 
wife,  where  the  wife  has  been  given  a  power  of  testamentary  dispo- 
sition and  has  exercised  it,  or  it  is  governed  by  the  usual  rules  of 
descent, 

ii«  Barka-  r.  Barker,  2  Sim.  249.  But  when  Incumbrances  are  paid  off,  they 
wiU  be  apportioned.     In  re  Freeman,  116  N.  C.  199,  21  S.  E.  110. 

6»  Burd  V.  Dansdale,  2  Bin.  (Pa.)  80;  Watson  v.  Watson,  13  Conn.  83;  Rose 
V.  Sanderson,  38  111.  247;  Canby  v.  Porter,  12  Ohio,  79;  Litchfield  v.  Cud- 
worth,  15  Pick.  (Mass.)  23;  Roberts  v.  Whiting,  16  Mass.  186;  Lancaster 
County  Bank  v.  Stauffer,  10  Pa.  St  35)8;  Wyatt  v.  Smith,  25  W.  Va,  813; 
mtz  T.  Bank,  111  U.  S,  722,  4  Sup.  CL  613;  Jacobs  v.  Rice,  33  111.  369;  Gard- 
ner v.  Hooper,  3  Gray  (Mass.)  398.  But  see  Evans  v.  Lobdale,  6  Houst  (DeL) 
212;  Bruce  v.  Nicholson,  109  N.  C.  202,  13  S.  E,  790.  But  see  Van  Duzer  v. 
Van  Duzer,  6  Paige,  Ch.  (N.  Y.)  366.  This  has  t)een  changed  \n  some  states  by 
statute.  Curry  v.  Bott,  53  Pa.  St.  400;  Staples  v.  Brown,  13  Allen  (Mass.)  64; 
Welsh  V.  Solenberger,  85  Va.  44L,  8  S.  E.  91;    Churchill  v.  Hudson,  34  Fed.  14 

eo  Robertson  v.  Norris,  11  Q.  B.  910;  Shortall  v.  Hinckley,  31  IlL  219;  Cen- 
tral Bank  v.  Copeland,  18  Md.  305;  Ward  v.  Thompson,  6  Gill  &  J.  (Md.)  349; 
Hutchins  v.  Dixon,  11  Md.  29;  Denton's  Guardians  v.  Denton's  Ex'rs,  17  Md. 
403;  Schermerhon  v.  Miller,  2  Cow.  (N.  Y.)  439;  Kottenbrock  v.  Cracraft,  36 
Ohio   St  584. 

81  Flagg  V.  Bean,  25  N.  H.  49;  Meraman's  Heirs  v.  Caldwell's  Heirs,  8  B. 
Mon.  (Ky.)  32. 

82  Foster  v.  Marshall,  22  N.  H.  491;  Robertson  y,  Norris,  11  Q.  B.  916; 
Miller  v.  Shacklejford,  4  Dana  (ICy.)  264;  Lessee  of  Thomp.son's  Heirs  v.  Green, 
4  Ohio  St  216;  Wass  v.  Bucknaxa,  38  Me.  356.  But  see  Melvln  v.  Proprietors, 
16  Pick.  (Mass.)  161;  Weisinger  v.  Murphy,  2  Head  (Tenn.)  674;  Coe  v.  Manu- 
factxuing  Co.,  35  Conn.  175;    Watson  v.  Watson,  10  Conn.  75. 

•»  Armstrong  T.  Wilson,  60  IlL  226;   Bates  v.  Shraeder,  13  Johns.  (N.  Y.)  26a 


§  47)  CURTESY HOW    DEFEATED.  81 


SAMIV— HOW  DKFEATED. 

47.  Curt^iy  may  be  defeated  by: 

(a)  Alienage  of  husband  in  some  states. 

(b)  Annulment  of  marriage,  and,  in  some  states,  by  di- 

vorce or  desertion. 

(c)  Termination  of  -wife's  estate. 

(d)  Husband's   joining   in   vsdfe's    conveyance,   and,  for- 

merly, by  husband's  feoffment  in  fee. 

(e)  The  wife's  conveyance  of  her  estate,  in  some  states. 

Alienage  of  the  husband  was  formerly  a  bar  to  curtesy,**  but  the 
pule  has  been  changed  by  statute  in  many  states.®"  If  the  wife's 
estate  is  defeated  by  title  paramount  during  her  life,  the  husband, 
of  course,  loses  his  curtesy."  At  common  law,  a  feoffment  in  fee 
by  the  husband  forfeited  his  curtesy,*^  but,  as  already  seen,  this  is 
not  now  the  rule  in  most  states.*'  Annulment  of  the  marriage 
or  divorce,®*  especially  for  the  husband's  fault,'"  and  in  some  states 
desertion  of  the  wife,  forfeits  all  rights  to  curtesy.'^     At  common 

•*  Foss  V.  Crisp,  20  Pick.  (Mass.)  121;  Reese  t.  Wai&cs,  4  Watts  &  S.  (Pa.) 
145;  Mussey  v.  Pierre,  24  Me.  559;  Den  v.  Ward,  4  Dev.  (N.  C.)  247;  Den  v. 
SaiUs,  1  Jones  (N.  C)  70. 

«6  1  Stim.  Am.  St  Law,  §  102;  1  Washb.  Real  Prop.  (5th  Ed.)  p.  80,  note; 
1  Share.  &  B.  L«ad.  Cas.  Real  Prop.  276. 

«8  Co.  Utt  241a  (ButL  &  H.  Notes)  note  4. 

«T  4  Kent,  Comm.  83;  French  v.  Rollins,  21  Me.  372;  Wells  t.  Thompson,  13 
Ala.  793.  But  not  a  bargain  and  sale  deed.  Meraman's  Heirs  v.  Caldwell's 
Heirs,  8  B.  Mon.  (Ky.)  32;  McKee's  Lessee  t.  Pfont,  3  Dall.  (Pa.)  486;  a  mod- 
ern statutory  deed,  MLUer  v.  MiUer,  Meigs,  484;  nor  a  lease  in  fee,  Grout  v. 
Townsend,  2  Hill  (N.  Y.)  554. 

••  Ante,  p.  59. 

«»  Burgess  v.  Muldoon,  18  R.  L  607,  29  AtL  298.  But  see  Meacham  v.  Bunt- 
ling,  156  111.  586,  41  N.  E.  175. 

70  1  Stim.  Am.  St  Law,  §§  3307,  6247,  6248,  6306;  Wheeler  v.  Hotchkiss,  10 
Conn.  225;  Mattocks  v.  Steams,  9  Vt  326;  Schuster  t.  Schuster,  93  Mo.  438, 
6  S.  W.  259.  But  not  agaii^t  prior  assignees  of  the  husband.  Gillespie  v, 
Worford,  2  Cold.  (Tenn.)  632.  But  not  dlrorce  a  mensa  et  thoro.  Smoot  v. 
Lecatt,  1  Stew.  (Ala.)  590;    Rochon  v.  Lecatt  2  Stew.  (Ala.)  429. 

Ti  1  Stim.  Am.  St  Law,  §  3307;  Bealor  v.  Hahn  (Pa.  Sup.)  19  AtL  74;  Hart 
▼.  McGrew  (Pa.  Sup.)  11  AtL  611, 

BSAL  PROP. — 6 


82  ESTATES    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.    6 

law  the  wife  cannot,  by  her  conveyance,  defeat  the  right  of  cur- 
tesy; '"  but  the  married  women's  acts  in  some  cases  give  the  wife 
power  to  dispose  of  her  estate  so  as  to  cut  off  curi:esy/*  and  in 
the  other  states  the  husband  may  do  so  by  joining  in  his  wife's 
conveyance.^*  He  may  be  obliged  to  elect  between  curtesy  and 
a  devise  by  the  wife/'  or,  where  the  husband  is  given  dower  by 
statute,  it  would  be  barred  by  jointure  or  antenuptial  settlement 
or  contract'* 

SAME— STATUTOBY  CHANGES. 

48.  In  some  states  curtesy  exists  as  at  common  law,  but 
in  others  it  has  been  abolished  or  made  the  same 
as  do'wer. 

A  number  of  statutory  changes  in  the  estate  by  curtesy  have 
already  been  mentioned,  but  in  some  states  there  has  been  legis- 
lation which  has  made  radical  changes  in  the  estate  itself.  In 
many  states  curtesy  has  been  abolished  by  statute,  in  some  the 
estate  is  made  the  same  as  dower,  and  in  others  a  distributive 
share  is  given.''      So,  too,  the  changes  effected  by  the  married 

7  2  Mildmay's  Case,  6  Coke,  41;  Mullany  v.  Mullany,  4  N.  J.  Eq.  IG;  Pool  v. 
Blakie,  53  IlL  495;  Cooper  v.  Macdonald,  7  CIl  Div.  288;  Robinson  v.  Buck. 
71  Pa.  St  386. 

TsThnrber  v.  Townsend,  22  N.  Y.  517;  Breeding  v.  Davis,  77  Va.  639; 
Browne  v.  Bockover,  84  Va.  424,  4  S.  E.  745;  Alexander  v.  Alexander,  85  Va. 
353,  7  S.  E.  335;  Comer  v.  Chamberlain,  6  AUen  (Mass.)  166;  Silsby  v.  Bullock, 
10  Allen  (Mass.)  &4.  And  see  Burke  v.  Valentine,  52  Barb.  (N.  Y.)  412;  Scott 
V.  Guernsey,  60  Barb.  (N.  Y.)  163;  Oatman  v.  Goodrich,  15  Wis.  589;  Tyler  v. 
Wheeler,  160  Mass.  206,  35  N.  E.  666. 

7  4  Stewart  v.  Ross,  50  Miss.  776;  Haines  v.  Ellis,  24  Pa.  St  2.53;  Jackson  v. 
Hodges,  2  Tenn.  Ch.  276;  Carpenter  v.  Davis,  72  IlL  14.  Or  in  her  will.  Mc- 
Bride's  Estate,  81  Pa.  St  303. 

75  1  Stim.  Am.  St  Law,  §§  3304-3306. 

7  8  1  Stim.  Am.  St  I^w,  §§  3303,  3304,  6440. 

77  1  Stim.  Am.  St  Law,  art.  330.  In  several  states  the  husband  has  no 
curtesy  in  lands  which  descend  to  the  issue  of  the  wife  by  a  former  husband. 
Id.  §  3302  B.  Further,  as  to  the  statutory  changes,  see  1  Shars.  &  B.  Lead. 
Cas.  Real  Prop.  286;  1  Washb.  Real  Prop.  (5th  Ed.)  170;  Williams,  Real 
Prop,  (irch  Am.  Ed.)  note  375;    Smith  v.  Smith,  21  D.  a  289. 


§    49)  DO  WEB DEFINITION.  83 

women's  acts,  already  mentioned/*  have  nearly  abolished  curtesy 
initiate  by  giving  wives  extensive  powers  to  control  and  dispose 
of  their  realty/* 

DOWEB— DEFINITION. 

49.  Dower  is  the  provision  -which  the  law  makes  for  a 
widow  out  of  the  lands  or  tenements  of  the  hus- 
band for  her  support.  In  most  states  it  is  a  life 
estate  in  one-third  of  the  husband's  realty.  The 
requisites  of  dow^er  are: 

(a)  Marriage. 

(b)  Seisin  of  the  husband  during  coverture. 

(c)  Death  of  the  husband  before  the  wife. 

Dower  ®*  is  a  legal  life  estate,  and  therefore  a  freehold.  At  com- 
mon law  it  was  one-third  of  all  the  realty  of  which  the  husband 
was  seised  at  any  time  during  coverture,  but  this  amount  has  been 
changed  to  one-half  in  several  of  the  states  by  statute.*^  The 
rights  of  a  widow  in  her  deceased  husband's  real  property  are  in 
all  cases  governed  by  the  law  of  the  place  where  the  land  is  sit- 
uated. Thus,  dower  may  have  been  abolished  in  the  state  of  the 
residence  of  the  husband  and  wife,  and  yet  the  widow  would  have 
dower  in  lands  owned  by  him  in  a  state  where  dower  still  existed.*' 

T  8  Ante,  p.  73. 

7  8  Hitz  V.  Bank,  lU  U.  S.  722,  4  Sup.  Ct  613;  Breeding  v.  Davis,  77  Va. 
639;  Evans  v.  Lobdale,  6  Houst  (Del)  212;  Porch  v.  Fries,  18  N.  J.  Eq. 
204;  Thurber  v.  Townsend,  22  N.  Y.  517;  Walker  v.  Long,  109  N.  C.  510,  14 
S.  E.  299;  Beach  v.  Miller,  51  IlL  206;  McNeer  v.  McNeer,  142  111.  388,  32  N. 
B.  681;    Jackson  v.  Jackson,  144  IlL  274,  33  N.  K  51. 

80  For  the  distinction  between  dower  and  dowry,  see  2  BL  Comm.  129; 
Black,  Law  Diet.  "Dower,"  "Dowry."  For  the  history  and  origin  of  dower, 
see  Digby,  Hist  Real  Prop.  (4th  Ed.)  p.  126;  2  BL  Comm.  129;  1  Wa&hb.  Real 
Prop.  147. 

81 1  Stim.  Am.  St  Law,  §§  3105,  3202  F.  And  see  Pearson  v.  Pearson,  135 
Ind.  377,  35  N.  E.  288;  Zachry  v.  Lockard,  98  Ala,  371,  13  South.  514;  Wads- 
worth  V.  MiUer,  103  Ala.  130,  15  South.  520. 

82  Lamar  v.  Scott  3  Strob.  (S.  C)  562;  Barnes  v.  Cunningham,  9  Rich.  Eq. 
(S.  C.)  475;  Duncan  v.  Dick,  Walk.  (Miss.)  281;  Jones  v.  Gerock.  6  Jones, 
Eq.  (N.  C.)  19a 


84  ESTATES    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   6 

Marriage — Dower  Incfuxite. 

As  in  curtesy,  there  must  be  a  lawful  marriage  in  order  to  give 
dower."  No  dower  can  be  claimed  if  the  marriage  was  void. 
But  if  merely  voidable,  and  not  avoided  during  coverture,  the 
widow  may  Lave  dower."*  A  marriage  per  verba  de  praesenti  or 
per  verba  de  futuro  cum  copula  will  give  dower."  By  marriage 
the  right  to  dower  attaches,"  but  remains  inchoate  until  the  death 
of  the  husband.'^ 
Seisin  of  Husband — Transitory  Seisin. 

It  is  also  required,  to  give  the  widow  dower,  that  the  husband 
be  seised  of  the  estate  during  coverture.""  But  a  seisin  in  law  is 
suflQcient."  A  mere  right  of  entry,  however,  will  not  give  dower 
at  common  law,®°  though  this  has  been  changed  by  the  statutes  of 
several  states.*^ 

8  3  Jones  V.  Jones,  28  Ark.  19;  Moore  v.  Mayor,  etc,  8  N.  Y.  110;  Besson 
y.  Gribble,  39  N.  J.  Eq.  Ill;    De  France  v.  Johnson,  26  Fed.  891. 

«*  Uij^gins  V.  Breen,  9  Mo.  497;  Jenkins  v.  Jenkins'  Heirs,  2  Dana  (Ky.) 
102;  Donnelly  v.  Donnelly's  Heirs,  8  B.  Mon.  (Ky.)  113;  Smith  v.  Smith,  5 
Ohio  St  32;    Smart  v.  Whaley,  6  Smedes  &  M.  (Miss.)  308. 

«B  1  Scrib.  Dower  (2d  Ed.)  71;  Pearson  v.  Howey,  11  N.  J.  Law,  12;  Fenton 
V.  Reed,  4  Johns.  (N.  Y.)  52;  Adams  v.  Adams,  57  Miss.  267.  But  the  valid- 
ity of  such  marriages  is  denied  in  some  states.    1  Scrib.  Dower  (2d  Eld.)  71,  99. 

•«  Buzick  V.  Buzick,  44  Iowa,  259. 

87  Inchoate  dower  is  not  an  estate  in  land,  but  only  an  interest  Blodget 
V.  Brent  3  Cranch,  C.  C.  394,  Fed.  Ca^.  No.  1,553;  Moore  v.  Mayor,  etc,  8 
N.  Y.  110;  Howlett  v.  Dilts,  4  Ind.  App.  23,  30  N.  E.  313;  McArthur  v. 
Franklin,  16  Ohio  St  193;  Gunnison  v.  Twitchel,  38  N.  H.  62.  And  as  hold- 
ing that  it  is  not  even  an  interest,  see  1  Washb.  Real  Prop.  (5th  Ed.)  312. 

«8Amcotts  V.  Catherich,  Cro.  Jac  615;  Price  v.  Hobbs,  47  Md.  359;  Hous- 
ton V.  Smith,  88  N.  a  312;  Butler  v.  Cheatham,  8  Bush  (Ky.)  594;  Poor  v. 
Horton,  15  Barb.  (N.  Y.)  485;  Grant  v.  Sutton  (Va.)  22  S.  B.  490;  Kade  v. 
Lauber,  48  How.  Prac.  (N.  Y.)  382;  Crabb  v.  Pratt  15  Ala.  843;  Blood  v. 
Blood,  23  Pick.  (Mass.)  80;  MUler  v.  Wilson,  15  Ohio,  108;  Rands  v.  Kendall, 
Id.  671;  Grey  v.  McCune,  23  Pa.  St.  447.  In  a  few  states  she  takes  dower 
only  in  estates  of  which  he  died  seised.  1  Stim.  Am.  St  Law,  §  3202  E;  1 
Washb.  Real  Prop.  (5th  Ed.)  196;  1  Williams,  Real  Prop.  (17th  Am.  Ed.)  note 
377. 

89  Atwood  V.  Atwood,  22  Pick.  (Mass.)  283;  Apple  v.  Apple,  1  Head  (Tenn.) 
S48;    Mclntyre  v.  CosteUo,  47  Hun  (N.  Y.)  289. 

•0  1  Scrib.  Dower  (2d  Ed.)  255.     Nor  was  the  recovery  of  a  judgment  for 
the  lands  suflBcient  if  no  entry  was  made  or  execution  served.     Id,  257. 
•  1  1  Stun-  Am.  St  Law,  §  3211;    1  Scrib.  Dower  (2d  Ed.)  258. 


§   49)  DOWER DEFINITION.  *  85 

Although  the  rale  is  that  the  husband's  seisin  need  be  only  for 
an  instant  of  time,^*  still  if  he  is  a  mere  conduit  for  passing  the 
seisin  to  another,"  or  if  he  acquires  and  parts  with  the  seisin 
again  by  the  same  transaction,  then  no  right  of  dower  arises.  This 
is  the  case  when  the  husband  buys  land  and  gives  a  mortgage  back 
for  the  purchase  money.  The  wife  in  such  case  is  entitled  to 
dower  in  the  equity  of  redemption  alone.®* 

Death  of  the  JSusbcmd — Dower  Consvfnvmate. 

The  other  requisites  of  dower  being  present,  the  right  becomes 
consummate  by  the  death  of  the  husband.  Until  that  occurs,  the 
wife  has  only  a  contingent  interest.  This  interest  becomes  vested 
if  the  husband  dies  before  the  wife." 

•  2  Broughton  v.  Randall,  Cro.  Eliz.  503;  Stan  wood  v.  Dunning,  14  Me.  290; 
McCauley  v.  Grimes,  2  Gill  &  J.  (Md.)  318;  Sutherland  v.  Sutherland,  69  lU. 
481;  Stanwood  v.  Dunning,  14  Me.  290;  Smith  v.  McCarty,  119  Mass.  519; 
Douglass  V.  Dickson,  11  Rich.  Law  (S.  a)  417.  Such  seisin  is  good  as  against 
strangers,  though  it  be  tortious.  Randolph  v.  Doss,  3  How.  (Miss.)  205;  Ed- 
mondson  t.  Welsh,  27  Ala.  578. 

»s  Fontaine  v.  Savings  Inst.,  57  Mo.  552. 

»*  Maybtirry  v.  Brien,  15  Pet  21;  King  v.  Stetson,  11  Allen  (Mass.)  407; 
Holbrook  v.  Finney,  4  Mass.  5G6;  Stow  v.  Tiflft,  15  Johns.  (N.  Y.)  458;  Ooates 
V.  Cheever,  1  Cow.  (N.  Y.)  460;  Wheatley's  Heirs  v.  Calhoun,  12  Leigh  (Va.) 
264;  Seekright  v.  Moore,  4  Leigh  (Va.)  30;  Ragsdale  v.  OT)ay,  1  Mo.  App, 
Rep'r,  363;  Griggs  v.  Smith,  12  N.  J.  Law,  22;  Crafts  v.  Crafts,  2  McCord  (S. 
O.)  54;  Ratclifife  v.  Mason,  92  Ky.  190,  17  S.  W,  438;  Moore  v.  Esty,  5  N.  H. 
489.  But  see  MeClure  v.  Harris,  12  B.  Mon.  (Ky.)  261;  Rawlings  v.  Lowndes, 
34  Md.  639;  Butler  t.  Thomburg,  131  Ind.  237,  30  N.  E.  1073;  Jeflferies  v. 
Fort,  43  S.  C.  48,  20  S.  E.  755.  The  mortgage  may  be  to  a  third  person. 
Glenn  t.  Clark,  53  Md.  580;  Jolmson  v.  Plume,  77  Ind.  168;  Kittle  v.  Van 
Dyck,  1  Sandf.  Ch.  76;  Boush  v.  Miller.  39  W.  Va.  638,  20  S.  E.  663.  And  the 
mortgage  may  even  be  on  another  parcel  of  land  which  is  acquired  as  a  part 
of  the  same  transaction,     Adams  v.  iffll,  29  N.  EL  202. 

»5  Sutliff  V.  Forgey,  1  Cow.  (N.  Y.)  89;  Tmett  v.  Funderburk,  93  Ga.  686,  20 
S.  E.  260.  There  must  be  natural  death;  civU  death  wUl  not  give  dower. 
Wooldridge  v.  Lucas,  7  B.  Mon.  (Ky.)  49;  Platner  v.  Sherwood,  6  Johns.  Ch. 
(N.  Y.)  129.  In  a  few  states  divorce  makes  the  right  to  dower  consummate.  1 
Stim.  Am.  St  Law,  §  6251  A  (1).  So  an  assignment  for  creditors.  Wright  v. 
G«lvrn,  85  Ind.  128.  And  in  two  states  judicial  sale  of  the  husband's  lands.  1 
Stim.  Am.  St.  Law,  §  3204.  And  see  KeUey  v.  Canary,  129  Ind.  460,  29  N.  EL 
11;  Whitney  v.  Marshall,  138  Ind.  472,  37  N.  E.  964;  Huff  master  v.  Ogden,  135 
Ind.  061,  35  N.  E.  512.  Contra,  Gatewood  v.  Tomlinson,  113  N.  a  312,  18  S.  J5. 
31S. 


86  ESTATES    AS    TO    QUANTITY — LEGAL    LIFE    ESTATES,  (Ch.  6 


SAME— IN  WHAT  ESTATES. 

50.  A  widow  has  dower  at  coininon  law  in  the  husband's 
estates  of  inheritance,  provided  the  following  con- 
ditions concur : 

(a)  In  many  states  the   land   nmst  be   capable  of  bene- 

ficial enjoyment  as  a  life  estate  (p.  87). 

(b)  The  estate  must  be  one  which  issue  of  the  wife  could 

inherit  (p.  88). 
(0)  The  estate  must  not  be  terminated  by  the  happening 
of  a  contingency  (p.  88). 

(d)  At   common   law  the   husband   must  have  the   legal 

title ;  but  there  is  dower  in  equities  of  redemption, 
and  in  many  states  in  all  equitable  estates,  by  stat- 
ute (p.  89). 

(e)  The  husband    must  be   seised  in   possession,  not  in 

expectancy  (p.  91). 

(f)  The   estate   must  not  be  one  in  joint  tenancy  (p.  92). 

States  of  Inheritance. 

Since  dower  is  a  continuation  of  the  husband's  estate,  it  is  nec- 
■essary  that  he  hare  an  estate  of  inheritance;  that  is,  a  fee  simple 
or  a  fee  tail.*'  There  will  be  dower  in  a  fee  tail,'^  even  though 
the  estate  be  at  an  end,  by  failure  of  heirs,  at  the  husband's 
death.'*  There  is  no  dower,  however,  where  an  estate  tail  is  by 
statute  changed  into  a  life  estate  and  a  remainder.*®  Nor  is  a 
widow  dowable  of  her  husband's  life  estates,^***  except  where  an 

»«  Johnson  r.  Jacob,  11  Bush  (Ky.)  &46;   Chew  v.  Chew,  1  Md.  163. 

»T  But  not  in  Kentucky.     (Jen.  SL  1883,  p.  527,  c  50,  art.  4,  §  2. 

»«  Smith's  Appeal,  23  Pa.  St  9;  Moody  v.  King,  2  Bing.  447;  Northcut  v. 
Whipp,  12  B.  Mon.  (Ky.)  65. 

«»  Trumbull  v.  Trumbull,  149  Mass.  200,  21  N.  E.  366.  And  see  Edwards  v. 
Bibb,  54  Ala.  475, 

io«  Gillis  V.  Brown,  5  Cow.  (N.  Y.)  3SS  (per  autre  vie);  Kiiit^erbacker  v. 
Seymour,  46  Barb.  (N.  T.)  198;  In  re  Watson's  Estate,  139  Pa.  St  461,  22  Atl. 
638;  Thompson  v.  Vance,  1  Mete.  (Ky.)  669;  Edwards  v.  Bibb,  54  Ala.  475; 
Alexander  v.  Cunningham,  5  Ived.  (N.  C.)  430 ;  Kenyon  v.  Kenyon,  17  R,  I.  539, 

20  Atl.  101,  and  24  Atl.  787. 


§    50)  DOWER IN    WHAT   ESTATES.  87 

estate  per  autre  vie  is  made  an  estate  of  inheritance.***  WTiere  a 
long  term  of  years  is  given  the  character  of  a  fee  simple,  there 
is  a  right  to  dower/ °'  but  in  no  other  case  can  there  be  dower  in 
an  estate  for  years.*"' 

Same — Dower  in  Herds, 

As  will  be  seen  in  another  place,  the  husband  may  have  estates 
in  the  rents  issuing  out  of  land,  the  same  as  he  may  in  the  land 
itself;  and  the  rule  as  to  dower  is  the  same.  If  the  husband  is 
owner  of  a  rent  in  fee  or  in  tail,  the  widow  can  have  her  dower  in 
it;  ^°^  but  not  if  it  is  merely  for  life.*"'  On  the  other  hand,  if  the 
husband  grants  to  another  an  interest  in  land,  and  reserves  a  rent, 
she  will  take  her  share  of  the  rent  as  an  incident  of  the  dower 
which  she  takes  in  the  land  itself.**" 

.Lands  Capable  of  Snjoym-enL 

The  dower  right  attaches  only  to  real  property,***^  and  not  to  all 
kinds  of  realty  even;  for  instance,  in  many  states  dower  is  not 
given  in  wild  lands,  because  to  clear  them  for  cultivation  would  be 
waste,****  and  cause  their  forfeiture-     For  the  same  reason  a  widow 

i»i  See  ante,  pp.  35,  67.     And  see  StuH  v.  Graham,  60  Ark.  461,  31  S.  W.  46. 

102  1  Stim.  Am.  St  Law,  §  3218. 

103  Gaunt  v.  Wainman,  3  Bing.  N.  a  69;  Sj^ngler  v.  Stanler,  1  Md.  QSh.  36; 
Gkwdwin  v.  Goodwin,  33  Conn.  314;   WMtmire  t.  Wright,  22  S.  C.  446. 

10*2  BL  Comm.  132;    1  Scrib.  Dower  (2d  Ed.)  373. 

10  5  1  Smb.  Dower  (2d  Ed.)  374;    Co.  Litt  32a. 

io«  Co.  Litt  32a;  Stoughton  v.  Leigh,  1  Taunt  402;  Bland,  Ch.,  in  Chase's 
Case,  1  Bland  (Md.)  227;  Weir  v.  Tate,  4  Ired.  Eq.  (N.  C.)  264;  Heibert  v. 
Wren,  7  Cranch,  370. 

107  HaUett  v.  HaUett,  8  Ind.  App.  305,  34  N.  B.  740;  Brackett  v.  Leighton,  7 
Me.  383;  Buckeridge  v.  Ingram,  2  Ves.  Jr.  652.  The  term  "widow's  thirds," 
designating  her  share  of  the  husband's  personal  estate,  is  sometimes  applied  to 
dower. 

los  Conner  y.  Shepherd,  15  Mass.  164;  Webb  v.  Townsend,  1  Pick.  (Mass.) 
21;  White  v.  Cutler,  17  Pick.  (Mass.)  248;  Johnson  v.  Perley,  2  N.  H.  56;  Kuhn 
T.  Kaler.  14  Me.  409.  But  see  Shattuek  y.  Gragg,*23  Pick.  (Mass.)  88;  Whiter 
V.  Willis,  7  Pick,  (Mass.)  143;  Mosher  v.  Mosher,  15  Me.  371;  Stevens  y. 
Owen,  25  Me.  94;  Lothrop  y.  Foster,  51  Me.  367.  This  is  not  true  where  clear- 
ing wild  lands  is  not  waste.  Allen  y.  McCoy,  8  Ohio,  418;  Schnebly  y.  Schneb- 
ly,  26  TIL  116;  Brown  y.  Richards,  17  N.  J.  Eq.  32;  CampbeU's  Case,  2  Doug. 
(Mich.)  141;  Chapman  v.  Sehroeder,  10  Ga,  321;  Hickman  y.  Irvine's  Heirs, 
3  Dana  (Ky.)  121. 


88  ESTATES    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   6 

Is  not  dowable  of  mines,  unless  they  are  open,  so  that  she  can 
work  them.*'* 

Inheritance  hy  Issue. 

Dower  attaches  only  to  those  estates  of  the  husband  which  issue 
of  the  wife,  if  born,  mi^ht  inherit""  Thus,  if  an  estate  is  given  to 
a  man  and  his  heirs  begotten  on  the  body  of  his  wife,  B.,  a  subse- 
quent wife  could  not  have  dower,  because  her  issue  could  in  no 
case  inherit  the  estate.  But  it  is  not  necessary  that  the  wife  have 
issue  bom,  nor  need  there  be  a  physical  ability  to  bear  offspring.^^^ 
Dower  thus  differs  from  curtesy,  for  which  birth  of  issue  is  nec- 
essary."' 

Determinable  Estates. 

Dower  attaches  to  determinable  estates,**'  but  is  defeated  by 
the  happening  of  the  event  which  terminates  the  estate."*  If 
this  occurs  before  the  husband's  death,  dower  never  becomes  con- 
summate; if  after  his  death,  the  enjoyment  of  the  land  assigned 
as  dower  is  cut  off. 

199  Stoughton  V.  Leigh,  1  Taunt  402;  Lenfers  v.  Henke,  73  111.  405;  Coates 
T.  Cheever,  1  Cow.  (N.  Y.)  460;  Billings  v.  Taylor,  10  Pick.  (Mass.)  460; 
Moore  v.  Rollins,  45  Me.  493;  Hendrix  v.  McBeth,  61  Ind.  473;  cf.  Black  v. 
Mining  Co.,  49  Fed.  549.  But  see,  as  to  mining  leases,  Seager  v.  McCabe, 
92  Mich.  186,  52  N.  W.  299;  Priddy  v.  Griffith,  150  lU.  560,  37  N.  E.  999. 
There  is  no  dower  in  a  mining  claim.  Black  v.  Mining  Co.,  3  C.  a  A.  312,  52 
Fed.  859. 

110  Spangler  v.  Stanler,  1  Md.  Ch.  36;  Butler  v.  Cheatham,  8  Bush  (Ky.)  594. 

111  Co.  Litt  40a;  1  Scrib.  Dower  (2d  Ed.)  227.  At  common  law  the  widow 
must  be  at  least  nine,  as  women  have  become  mothers  at  that  age,  but  a 
woman  is  never  presumed  to  be  too  old  to  bear  children.  2  BL  Comm.  131;  1 
Scrib.  Dower  (2d  Ed.)  229. 

112  Ante,  p.  73. 

113  Such  as  estates  upon  condition  or  limitation.    See  post,  p.  169. 
iiiBeordslee  v.  Beardslee,  5  Barb.   (N.   Y.)  324;    Greene  v.  Reynolds,   72 

nun,  505,  25  N.  Y.  Supp.  025;  Peay  v.  Peay,  2  Rich.  Eq.  (S.  C.)  409;  Moore 
V.  Esty,  5  N.  H.  409;  Jackson  v.  Kip,  8  N.  J.  Law,  241;  Northcut  v.  Whipp, 
12  B.  Mon.  (Ky.)  65.  That  there  is  dower  in  a  fee  subject  to  an  executory 
devise,  see  Moody  v.  King,  2  Bing,  447;  Weller  v.  Weller,  28  Barb.  (N.  Y.) 
588;  Clark  v.  Qark,  84  ITnn,  3G2,  32  N.  Y.  Supp.  325;  Evans  v.  Evans,  9 
Pa.  St.  190.  Pollard  v.  Slaughter,  92  N.  C.  72;  Milledge  v.  Lamar,  4  De- 
saus.  Eq.  (S.  C.)  617;  Jones  v.  Hughes,  27  Grat  (Va.)  560;  Medley  v.  Medley, 
Id.  568.    Contra,  Edwards  v.  Bibb,  54  Ala.  475. 


§    50)  DOWEB — IN    WHAT   ESTATES. 


89 


Eguitahle  Estates. 

At  common  law,  equitable  estates  are  not  subject  to  dower;"* 
but  the  rule  has  been  changed  in  many  states  by  statute.""  Dow- 
er attaches  to  estates  executed  by  the  statute  of  uses."^  In  either 
case,  the  estate  must  be  of  the  same  quantity  as  required  for  legal 
estates;  "*  and,  if  the  husband  is  a  bare  trustee  of  the  legal  title, 
his  wife  has  no  dower.^^' 

Sams — Mortgages. 

The  widow  of  a  mortgagee  has  no  dower  in  the  mortgaged  prem- 
ises unless  the  estate  has  become  absolute  by  foreclosure.^^^  Ex- 
cept as  changed  by  statute,^^^  the  widow  of  one  who  has  given  a 
mortgage  during  coverture  in  which  she  has  not  joined  has  dower 
out  of  the  whole  estate;  ^"  but,  when  she  has  joined  in  the  mort- 
gage,^" or  it  was  executed  by  the  husband  before  marriage,"* 

116  Ohaplin  v.  Chaplin,  3  P.  Wms.  229;  Blakeney  v.  Ferguson,  20  Ark.  547; 
Gully  V.  Ray,  18  B.  Mon.  (Ky.)  107;  Steele  v.  Carroll,  12  Pet.  201;  WiUiams 
V.  Barrett,  2  Cranch,  C.  C.  673,  Fed.  Cas.  No.  17,714;  Hamlin  v.  Hamlin,  19 
Me.  141;  Bottomley  v.  Fairfax,  Prec  Ch.  336;  Mayburry  v.  Brien,  15  Pet  21; 
Crawl  V.  Harrington,  33  Neb.  107,  49  N.  W.  1118. 

116  1  Stim.  Am.  St.  Law,  §  3212;  1  Shars.  &  B.  Lead.  Cas.  Real  Prop.  312; 
1  Scrib.  Dower  (2d  Ed.)  401;    5  Am.  «&  Eng.  Enc.  Law.  895. 

117  See  post,  p.  253;  1  Scrib.  Dower  (2d  Ed.)  385;  Robison  v.  Codman,  1 
Stjch.  121,  Fed.  Cas.  No.  11,970. 

lis  Davenport  v.  Farrar.  2  111.  314;  Stroup  v.  Stroup,  140  Ind.  179,  39  N. 
E.  S64.  And  see  Tink  v.  Walker,  148  111.  234,  35  N.  E.  765.  Contra,  Phelps  v. 
Phelps,  143  N.  Y.  197,  38  N.  E.  280. 

119  Robison  v.  Codman,  1  Sumn.  121,  Fed,  Cas.  11,970;  De  Rush  v.  Brown, 
&  Ohio,  412;  Bartlett  t.  GJouge,  5  B.  Mon.  (Ky.)  152;  Cowman  v.  Hall,  3 
Gill  &  J.  (Md.)  398;  Cooper  v.  Whitney,  3  HiU  (N.  Y.)  95;  Ragsdale  v.  O'Day, 
1  Mo.  App.  Rep'r,  363;    Noel  v.  Jevon,  Freem.  Ch.  43. 

120  Foster  v.  Dwinel,  49  Me.  44;  Crittenden  y.  Johnson,  11  Ark.  94;  Reed 
T.  Shepley,  6  Vt.  602;  Waller  v.  Waller's  Adm'r,  33  Grat.  (Va.)  83;  Weir  v. 
Tate,  4  Ired.  Eq.  (N.  C.)  264;    Cooper  v.  Whitney,  3  Hill  (N.  Y.)  95. 

121  1  Stim.  Am.  St.  Law.  §  3213. 

122  Wedge  v.  Moore,  6  Cush.  (Mass.)  8. 

123  Cox  V.  Garst,  105  111.  342;  Smith  v.  Eustis,  7  Greenl.  (Me.)  41;  Mantz 
V.  Buchanan,  1  Md.  Ch.  202;  Glenn  v.  Clark,  53  Md.  580;  State  Bank  v.  Hin- 
ton,  21  Ohio  St.  509;    Schweitzer  v.  Wagner  (Ky.)  22  S.  W.  883. 

124  Carll  V.  Butman,  7  Me.  102;  Holbrook  v.  Finney,  4  Mass.  566;  Denton 
V.  Nanny,  8  Barb.  (N.  Y.)  618;  Heth  v.  Cocke,  1  Rand.  (Va.)  344.  But  see 
Shape  v.  Schaffner,  140  IlL  470,  30  N.  E.  872. 


90  ESTATES    AS    TO    QUANTITY LEGAL    LIFE   ESTATES.  (Ch.  6 

she  takes  her  dower  subject  to  the  mortgage;  ^"  and  if  the  mort- 
gage is  foreclosed  either  before  or  after  the  husband's  death,  she 
has  dower  in  the  surplus  proceeds  of  the  sale.^*'  The  widow  has 
a  right  to  have  the  mortgage  paid  off  out  of  the  husband's  per- 
sonal estate.*'^     The  common-law  rule  not  allowing  dower  in  equi- 

12  5  Mantz  T.  Buchanan,  1  Md.  Cai.  202;  Holmes  v.  Book,  1  Ohio  N.  P.  58. 
But  not  when  a  grantee  has  assumed  the  mortgage,  she  not  joining  in  the  con- 
veyance to  him.  McCabe  v.  Swap,  14  Allen  (Mass.)  188.  Dower  is  also  sub- 
ject to  a  vendor's  lien  for  the  purchase  price.  WiUiaras  v.  Woods,  1  Humph. 
(Tenn.)  408;  Crane  v.  Palmer,  8  Blackf.  (Ind.)  120;  McClure  v.  Harris,  12  B. 
Mon.  (Ky.)  261;  Ellicott  v.  Welch,  2  Bland  (Md.)  242;  Warner  v.  Van  Alstyne, 
3  Paige  (N.  Y.)  513;  Johnson  v.  Cantrell,  92  Ky.  59,  17  S.  W.  206.  Or  a  judg- 
ment recovered  against  the  husband  before  marriage,  where  a  judgment  is  a 
lien.  Robbins  v.  Robbins,  8  Blackf.  (Ind.)  174;  Trustees,  etc.,  of  Queen  Annes 
Co.  V.  Pratt,  10  Md.  5;  Brown  v.  WUIiams,  31  Me.  403;  Sandford  v.  McLean, 
3  Paige  (N.  Y.)  117.  But  see  Ingram  v.  Morris,  4  Har.  (DeL)  111.  Or  a  charge 
created  by  a  testator  on  lands  devised  to  the  husband.  Shiell  v.  Sloan,  22  S.  C. 
151.  But  dower  is  superior  to  a  mechanic's  lien  for  buildings  on  the  husband's 
land-  Bishop  v.  Boyle,  9  IndL  169;  Van  Vronker  v.  Eastman,  7  Mete  (Mass.) 
157;  Shaeffer  v.  Weed,  3  Gilman  (in.)  511;  Pifer  v.  Ward,  8  Blackf.  (Ind.) 
252.  Contra,  Nazareth  Literary  &  Benevolent  Institute  v.  Lowe,  1  B.  Mon. 
(Ky.)  257. 

issunger  v.  Leiter,  32  Ohio  St  210;  Ketchum  v.  Stiaw,  28  Ohio  St  503; 
Titus  V.  Neilson,  5  Johns.  Ch,  (N.  Y.)  452;  Hartshome  v.  Hartshome,  2  N.  J. 
Eq.  349;  Hawiey  v.  Bradford,  9  Paige  (N.  Y.)  200;  Thompson  v.  Cochran,  7 
Humph.  (Tenn.)  72;  Mathews  v.  Duryee,  45  Barb.  (N.  Y.)  69;  Culver  v.  Har- 
per, 27  Ohio  St  404;  Vreeland  v.  Jacobus,  19  N.  J.  Eq.  231;  Jennison  v.  Hap- 
good,  14  Pick,  (ilass.)  345.  When  foreclosure  occurs  before  the  death  of  the 
husband,  the  wife's  right  in  the  surplus  wiU-be  secured  to  her  by  Its  invest- 
ment Denton  v.  Nanny,  8  Barb.  (N,  Y.)  018;  Vartie  v.  Underwood,  18  Barb. 
(N.  Y.)  561;  De  Wolf  v.  Murphy,  11  R.  I.  630;  Vreeland  v.  Jacobus,  19  N.  J. 
Eq.  231.  Contra,  Newhall  v.  Bank,  101  Mass.  428.  In  certain  states  this  right 
is  given  by  statute.    1  Stim.  Am.  St  Law,  §  3216. 

127  Hawiey  v.  Bradford,  9  Paige  (N.  Y.)  200;  Jennison  v.  Hapgood,  14  Pick. 
CMass.)  345;  Henagan  v.  HarUee,  10  Rich.  Eq.  (S.  C.)  285;  Caroon  v.  Cooper, 
63  N.  C.  386;  Mantz  v.  Buchanan,  1  Md.  Ch.  202.  Contra,  Peckham  v.  Had- 
wen,  8  R.  I.  160.  The  right  does  not  exist  against  creditors,  Creecy  v.  Pearce, 
69  N.  C.  67;  Rossi ter  v.  Cossit,  15  N.  H.  38;  nor  when  the  mortgage  was  as- 
sumed by  the  husband,  Campbell  v.  Campbell,  30  N.  J.  Eq.  415.  The  right  is 
given  by  statute  in  Vermont  R,  L.  1880,  §  2218;  1  Stim.  Am.  St.  Law,  §  3214. 
Where  the  husband  dies  seised  of  the  equity  of  redemption,  the  widow  may  re- 
quire redemption  out  of  the  assets.  King  v.  King,  100  Mass.  224;  Mathewson 
y.  Smith,  1  R.  I.  22;    Henagan  v.  HarUee,  10  Rich,  Eq.  (S.  C.)  285. 


§   50)  DOWER IN   WHAT   ESTATES. 


91 


table  estates  does  not  hold  in  the  United  States  as  to  equities  of 
redemption."*  Therefore  the  widow  has  a  right  to  redeem  ^"  by 
contributing  her  share  of  the  mortgage  debt.""  If  the  holder  of 
the  equity  of  redemption  does  not  redeem,  she  can  redeem  from  the 
mortgagee  only  by  paying  off  the  whole  incumbrance."^ 

Estates  in  Exjpectancy^^^ — Dower  out  of  Dower. 

When  the  husband  has  only  a  remainder  or  a  reversion  after  an 
existing  freehold  estate,  there  is  no  dower,  because  he  is  not 
seised."^      Of  course,  if  the  preceding  estate  determines  during 

128  Maiming  v.  Laboree,  33  Me.  343;  Walker  v.  Griswold,  6  Pick.  (Mass.) 
41G;  Hlnehman  v.  Stiles,  9  N.  J.  Eq.  361;  Smith  v.  Eustis,  7  Me.  41;  Eaton  v. 
Simonds,  14  Pick.  (Mass.)  98;  Burrall  v.  Bender,  61  Mich.  608,  28  N.  W.  731 
Whitehead  v.  Middleton,  2  How.  (Miss.)  692;  Heth  v.  Cocke,  1  Rand.  (Va.)  344 
Woods  V.  Wallace,  30  N.  H.  384;  Swaine  v.  Perine,  5  Johns.  Ch.  (N.  Y.)  482 
Roan  V.  Holmes,  32  Fla.  295,  13  South.  339. 

129  Davis  V.  Wetherell,  13  AUen  (Mass.)  60.  The  right  extends  to  mortgages 
by  the  husband  before  marriage,  Wheeler  /.  Morris,  2  Bosw.  (N.  Y.)  524;  Coles 
V.  Coles,  15  Johns.  (N.  Y.)  319;  and  to  purchase-money  mortgages,  Mills  v.  Van 
Voorhies,  20  N.  Y.  412. 

i3oNoffts  V.  Koss,  29  111.  App.  301;  Swaine  v.  Perine,  5  Johns.  Ch.  (N,  Y.) 
482;  BeU  v.  Mayor,  etc,  10  Paige  (N.  Y.)  49;  Cox  v.  Garst,  105  111.  342;  Niles  v. 
Nye,  13  Mete  (Mass.)  135;  Gibson  v.  Crehore,  5  Pick.  (Mass.)  146;  Woods  v. 
Wallace,  30  N.  H.  384;  Cass  v.  Martin,  6  N.  H.  ^;  Richardson  v.  Skolfleld,  45 
Me.  386;  Simonton  v.  Gray,  34  Me.  50.  But  see  Shope  v.  Schaffner,  140 
111.  470,  30  N.  E.  872.  For  the  method  of  computing  his  share,  see  Swaine  v. 
Perine,  5  Johns.  Ch.  (N.  Y.)  482;  Gibson  v.  Crehore,  5  Pick.  (Mass.)  146.  When 
the  mortgage  is  paid  by  the  husband  or  by  any  other  person  hi  his  place,  the 
mortgage  is  extinguished,  so  that  the  widow  is  not  required  to  contribute.  Bol- 
ton V.  Ballard,  13  Mass.  227;  Snow  v.  Stevens,  15  Mass.  278;  Barker  v. 
Parker,  17  Mass.  564;  Hildreth  v.  JoneSy  13  Mass.  525;  Jennison  v.  Hapgood, 
14  Pick.  CMass.)  M5;  Hastmgs  v.  Stevens,  9  Fost  (N.  H.)  564;  Young  v.  Tar- 
bell,  37  Me.  509;  Mathewson  v.  Smith,  1  R.  I.  22;  Walker  v.  Griswold,  6  Pick. 
(Mass.)  416;  Hobbs  v.  Harvey,  16  Me.  80;  Smith  v.  Stanley,  37  Me,  11;  Run- 
yan  v.  Stewart,  12  Barb.  (N.  Y.)  537;  Harrison  v.  Eldridge,  7  N.  J.  Law,  392. 
Cf.  McArthur  v.  Porter,  1  Ohio,  99, 

isi  Wheeler  v.  Morris,  2  Bosw.  (N.  T.)  524;  Peabody  v.  Patten,  2  Pick. 
(Mass.)  517;  McCabe  v.  Bellows,  7  Gray  (Mass.)  148;  Van  Duyne  v.  Thayre, 
14  Wend.  (N.  Y.)  233. 

182  See  post,  p.  278. 

183  Durando  v.  Durando,  23  N.  Y.  331;  Green  i.  Putnam,  1  Barb.  (N.  Y.) 
500;  Apple  v.  Apple,  1  Head  (Tenn.)  348;  Cocke's  Ex'r  v.  Philips,  12  Leigh 
(Va.)  248;   Gardner  v.  Greene,  5  E.  L  104;   Eldredge  v.  Torrestal,  7  Mass.  253; 


92  ESTATES    AS    TO    QUANTITY LEQAL   LIFE   ESTATES.  (Ch.   S 

coverture,  and  the  husband  is  let  Into  possession,  dower  attaches.*** 
Where  the  intervening  estate  is  a  mere  chattel  interest,  such  as  a 
term  of  jears,  dower  attaches  because  the  husband  is  seised.^** 
The  exclusion  of  dower  from  estates  in  expectancy  gives  rise  ta 
the  rule  that  there  can  be  no  dower  out  of  dower.  For  instance, 
lands  descend  or  are  devised  *'•  to  a  son,  subject  to  a  right  of 
dower  in  his  mother.  If  the  son  dies  before  the  mother,  his  wife 
cannot  have  dower  out  of  the  lands  assigned  as  the  mother's  dow- 
er.^'^  If  the  junior  widow's  dower  is  first  assigned,  her  right  i» 
only  suspended  by  a  subsequent  assignment  to  the  mother;  and,  if 
the  mother  dies  first,  the  son's  widow  may  re-enter  upon  the  part 
taken  from  her.^'* 

Joint  Estates. 

In  a  joint  tenancy,^"  the  possibility  of  survivorship  in  the  co- 
tenants  prevents  dower  from  attaching.^*"  This,  of  course,  does 
not  apply  when  the  husband  has  survived  his  co-tenants,  or  there 
has  been  partition  of  the  estate.^*^     In  some  states  statutes  have 

Brooks  V.  Everett,  13  AUen  (Mass.)  457;  Otis  v.  Parshley,  10  N.  EL  403;  Fisk 
V.  Eastman,  5  N.  H.  240;  KeUett  v.  Shepard,  139  111.  433,  28  N.  E.  751,  and  34 
N.  E.  254;  Arnold's  Heirs  v.  Arnold's  Adm'r,  8  B.  Men.  (Ky.)  202;  Butler  v. 
Cheatham,  8  Bush  (Ky.)  504;  Young  v.  Morehead,  94  Ky.  608,  23  S.  W.  511. 
But,  if  the  husband  purchases  the  prior  estate,  the  wife  will  have  dower.  House 
T.  Jackson,  .jO  N.  Y.  161.  By  statute,  in  Ohio,  dower  is  given  in  reversions  and 
remainders.    1  Stim.  Am.  St.  Law,  §  3211. 

i»*  1  Scrib.  Dower  (2d  Ed.)  321. 

no  Boyd  V.  Hunter,  44  Ala,  705;    Sykes  v.  Sykes,  49  Miss.  190. 

13  6  Robinson  v.  Miller,  2  B.  Mon.  (Ky.)  284.  If  he  take  them  by  purchase^ 
the  rule  is  different.  Co.  Litt.  31a;  In  re  Cregier,  1  Barb.  (N.  Y.)  598.  But 
cf.  Durando  v.  Durando,  23  N.  Y.  331. 

"7  Reynolds  v.  Reynolds,  5  Paige  (N.  Y.)  161;  Saflford  v.  Saflford,  7  Paige 
(N.  Y.)  259;  Bear  v.  Snyder,  11  Wend.  (N.  Y.)  592;  Geer  v.  Hamblin,  1 
Greenl.  (Me.)  54;  Manning  v.  Laboree,  33  Me.  343;  Reitzel  v.  Eckard,  65  N. 
C.  673;  Carter  v.  McDaniel,  94  Ky.  564,  23  S.  W.  507;  Peckham  v.  Hadwen, 
8  R.  L  160;  Gardner  v.  Greene,  5  R.  I.  104.  But  possession  under  a  right 
of  quarantine  does  not  prevent  the  heir's  widow  taking  dower.  Null  v.  How- 
ell, 111  Mo.  273,  20  S.  W.  24. 

188  Steele  v.  La  Frambois,  68  IlL  456;    In  re  Cregier,  1  Barb.  Ch.  (N,  Y.)  598. 

18  8  See  post,  p.  333. 

140  Mayburry  v.  Brien,  15  Pet  21;  Cockrill  v.  Armstrong,  31  Ark.  580;  Bab- 
bitt V.  Day,  41  N.  J.  Eq.  392,  5  Aa  275;    Reed  v.  Kennedy,  2  Strob.  (S.  C.)  67. 

141  1  Scrib.  Dower  (2d  Ed.)  337.     But  a  sale  by  one  tenant  of  his  interest  is 


I   50)  DOWKR ^IN    WHAT   ESTATES.  93 

abolished  survivorship,  and  so  given  dower  in  joint  tenancies;  in 
others,  it  has  been  expressly  granted.^*'  Dower  is,  however,  an 
incident  of  estates  in  co-parcenary  ^**  and  in  common.^**  If  par- 
tition is  made  of  such  an  estate,  the  right  of  dower  no  longer  ex- 
ists in  the  whole  land,  but  merely  in  the  portion  set  apart  to  the 
husband.**' 

Sarne — Partnership  Lands. 

Equity  regards  lands  held  by  a  partnership  as  personalty,  and 
the  widow  of  a  deceased  partner  has  dower  only  in  his  share  of  the 
firm  realty  which  is  left  after  the  debts  are  paid.^** 

not  such  partition  as  gives  his  wife  dower.  Mayburry  v.  Brien,  15  Pet  21; 
CockriU  v.  Armstrong,  31  Ark.  580;  Babbitt  v.  Day,  41  N.  J.  Eq.  392,  5  AU.  275. 

1*2  1  stim.  Am.  St.  Law,  §§  1371,  3211;  1  Scrib.  Dower  (2d  Ed.)  338;  Weir 
V.  Tate,  4  Ired.  Eq.  (N.  C.)  2G4;    Davis  v.  Logan,  9  Dana  (Ky.)  185. 

143  Jourdan  v.  Haran,  56  N.  Y.  Super.  Ct  R.  185,  3  N.  Y.  Supp.  541;  Baker 
V.  Leibert,  125  Pa.  St.  106,  17  Atl.  236;    1  Scrib.  Dower  (2d  Ed.)  341. 

1*4  Harvill  v.  HoUoway,  24  Ark.  19;  Ross  v.  Wilson,  58  Ga.  249;  French 
V.  Lord,  69  Me.  537;  Hill  v.  Gregory,  56  Miss.  341;  Smith  v.  Smith,  6  Lans. 
(N.  Y.)  313;   Hudson  v.  Steere,  9  R.  I.  106;  Davis  v.  Bartholomew,  3  Ind.  485, 

146  Potter  V.  Wheeler,  13  Mass.  504;  Wilkinson  v.  Parish,  3  Paige  (N.  Y.) 
653;  Totten  v.  Stuyvesant,  3  Edw.  Ch.  (N.  Y.)  500;  Lee  v.  Lindell,  22  Mo. 
202;  Mosher  v.  Mosher,  32  Me.  412;  Lloyd  v.  Conover,  25  N.  J.  Law,  47; 
Docktermann  v.  Elder,  27  Wkly.  Law  Bui.  195;  HoUey  v.  Glover,  36  S.  C. 
404,  15  S.  E.  605.  So  a  sale  in  partition  divests  the  wife's  whole  interest. 
Weaver  v.  Gregg,  6  Ohio  St.  547.  But  see  Cobum  v.  Herrington,  114  111,  104, 
29  N.  E.  478;    Dehoney  v.  Bell  (Ky.)  30  S.  W.  400. 

146  Simpson  v.  Leech,  86  111.  286;  Hale  v.  Plummer,  6  Ind.  121;  Campbell 
V.  Campbell,  30  N.  J.  Eq.  415;  Dyer  v.  Clark,  5  Mete.  (Mass.)  562;  Mowry  v. 
Bradley,  11  R.  I.  370;  Free  v.  Beatley,  95  Mich.  426,  54  N.  W.  910;  Dawson 
V.  Parsons,  10  Misc.  Rep.  428,  31  N.  Y.  Supp.  78;  RiddeU  v.  RiddeU,  85  Hun, 
482,  33  N.  Y.  Supp.  99;  Parrish  v.  Parrish,  88  Va.  529,  14  S.  E.  325;  Deering 
V.  Kerfoot's  Ex'r,  89  Va.  491,  16  S.  E.  671;  Young  v.  Thrasher.  115  Mo.  222, 
21  S.  W.  1104;  Woodward-Holmes  Co.  v.  Nudd,  58  Minn.  236,  59  N.  W.  1010; 
Holton  V.  Guinn,  65  Fed.  450.  But  see  Ratcliffe  v.  Mason,  92  Ky.  190,  17  S. 
W.  438;  Shipp  v.  Snyder,  121  Mo.  155,  25  S.  W.  900;  Hughes  v.  Allen,  66 
Vt.  95,  28  AtL  882. 


94  KTATES    AS    TO    QUANTITY LBQAL    LIFE   ESTATES.  (Ch.  6 


SAME— QUARANTINE. 

51.  Quarantine  is  the  right  of  a  -widow  to  remain  in  her 
husband's  principal  mansion  house  after  his  death 
for  forty  days. 

62.  The  duration  of  quarantine  has  been  extended  in  some 

states. 

At  common  law  a  widow  has  a  right,  called  her  "quarantine," 
to  remain  40  days  in  the  mansion  house  "^  of  the  husband.^** 
Statutes  in  some  states  give  a  longer  time.^"  In  several  she  can 
now  remain  until  her  dower  is  assigned.^""*  The  right  can  only  be 
claimed  as  to  property  of  which  the  widow  is  dowable.^^^  She 
can  lease  ^"  the  premises,  but  her  quarantine  right  is  not  sub- 
ject to  sale  on  execution.^ ^^     By  common  law  quarantine  was  for- 

1*7  In  some  states  the  right  has  been  extended  to  other  property  besides 
the  house.  1  Shars.  &  B.  Lead.  Cas.  Keal  Prop.  403;  1  Washb.  Real  Prop. 
(5th  Ed.)  282;  Weaver  v.  Crenshaw,  6  Ala.  873;  Stewart's  Lessee  v.  Stewart. 
3  J.  J.  Marsh.  (Ky.)  49;    Grimes  v.  Wilson,  4  Blackf.  (Ind.)  33L 

1*8  Oakley  v.  Oakley,  30  Ala.  131.  The  right  exists  only  against  those 
claiming  under  the  husband.     Taylor  v.  McCrackin,  2  Blackf.  (Ind.)  2G0. 

1*9  In  several  it  is  now  one  year.  1  Stim.  Am.  St.  Law,  §  3278;  1  Shars. 
&  B.  Lead.  Cas.  Real  Prop.  403;    1  Washb.  Real  Prop.  (5th  Ed.)  282. 

160  1  stim.  Am.  St.  Law,  §  3278;  1  Shars.  &  B.  Lead.  Cas.  Real  Prop.  403; 
1  Washb.  Real  Prop.  (5th  Ed.)  282;  White  v.  Clarke,'?  T.  B.  Mon.  (Ky.)  641; 
Pharis  v.  Leachman,  20  Ala.  GG2;  Rambo  v.  Bell,  3  Ga.  207;  Graham's  Heirs 
V.  Graham,  6  T.  B.  Mon.  (Ky.)  561;  Chaplin  v.  Simmons'  Heirs,  7  T.  B.  Men. 
(Ky.)  337;  Stewart's  Lessee  v.  Stewart,  3  J.  J.  Marsh.  (Ky.)  48;  Robinson  v. 
Miller,  1  B.  Mon.  (Ky.)  88. 

isi  Harrison  v.  Boyd,  3G  Ala.  203.  She  cannot  claim  quarantine  in  the 
whole  of  a  house  held  in  common.  Collins  v.  Warren,  29  Mo.  236.  Except 
in  states  where  such  interests  are  made  subject  to  dower,  quarantine  does 
not  extend  to  leasehold  estates.  Voelckner  v.  Hudson,  1  Sandf.  (N.  Y.)  215; 
Pizzala  v;  Campbell,  46  Ala.  35. 

182  WaUace  v.  Hall's  Heirs,  19  Ala.  367;  White  v.  Clarke,  7  T.  B.  Mon.  (Ky.) 
641;  Craige  v.  Morris,  25  N.  J.  Eq.  467.  Cf.  Doe  d.  Caillaret  v.  Bernard,  7 
Smedes  &  M.  (Miss.)  319.    And  see,  contra,  Stokes  v.  McAllister,  2  Mo.  163. 

iB»  Cook  V.  Webb,  18  Ala.  810.  She  need  not  pay  the  taxes  on  the  prem- 
ises. Branson  v.  Yancy,  1  Dev.  Eq.  (N.  C.)  77.  And  see  Roach  v.  Davidson, 
3  Brev.  (S.  C.)  80;    Bleecker  v.  Hermion,  23  N.  J.  Eq.  123. 


§   53)  DOWER ASSIGNMENT.  95 

feited  by  a  second  marriage/'*  but  the  rule  is  otherwise  in  this 
country.^** 

SAME— ASSIGNMENT. 

53.  Assignment  is   the   setting   out   to   the  widow  of  her 
share  in  the  husband's  lands.     It  is: 

(a)  Of  common  right,  w^hich  is  an  assignment  of  a  life 

estate  in  one-third  by  metes  and  bounds. 

(b)  Against  common  right,  which  is   an   assignment  in 

some  other  manner  by  consent  of  the  parties. 

Dower  consummate  before  assignment  is  not  an  estate,^'"  but 
only  a  chose  in  action.^"^  At  law  it  is  not  liable  for  the  widow's 
debts,^'*  nor  can  she  transfer  this  right,^'^  though  a  transfer  may 
be  enforced  in  equity.^®"  She  has  no  right  of  entry  until  assign- 
ment,^®^ nor  can  she  bring  partition.^®* 

154  2  Scrib.  Dower  (2d  Ed.)  63. 
185  Shelton  v.  Carrol,  IG  Ala.  148. 

166  Blodget  V.  Brent,  3  Cranch,  C.  C.  394,  Fed.  Cas.  No.  1,553;  Reynolds  v. 
McCurry,  100  111.  356;  Heisen  v.  Heisen,  145  IlL  658,  34  N.  E.  597;  Scott  v. 
Howard,  3  Barb.  (N.  Y.)  319. 

167  Rayner  v.  Lee,  20  Mich.  384;  Summers  v.  Babb,  13  lU.  483;  Weaver  v. 
Sturtevant,  12  R.  I.  537;    Downs  v.  Allen,  10  Lea  (Tenn.)  G52. 

158  Gooch  V.  Atkins,  14  Mass.  378;  Petty  v,  Malier,  15  B.  Mon.  (Ky.)  591; 
Waller  v.  Mardus,  29  Mo.  25;  Blain  v.  Harrison,  11  ILL  384;  Summers  v. 
Babb,  13  lU.  483;  Nason  v.  Allen,  5  Greenl.  (Me.)  479;  Pennington's  Ex'rs  v. 
Yell,  11  Ark.  212.  But  that  it  may  be  reached  by  creditors'  biU,  see  Payne 
V.  Becker,  87  N.  Y.  153;  Stewart  v.  McMartin,  5  Barb.  (N.  Y.)  438;  Tompkins 
V.  Fonda,  4  Paige  (N,  Y.)  448;  Thomas  v.  Simpson,  3  Pa.  St  60;  Shaupe  v. 
Shaupe,  12  Serg.  &  R.  (Pa.)  9;  Boltz  v.  Stoltz,  41  Ohio  St.  540;  Davison  v. 
Whittlesby,  1  MeArthur,  163.    Contra,  Maxon  v.  Gray,  14  R.  L  64L 

159  Summers  v.  Babb,  13  111.  483;  McDonald  v.  Hannah,  51  Fed.  73;  Blain  v. 
Harrison,  11  111.  384;  Hoots  v.  Graham,  23  lU.  81;  Jackson  v.  Aspell,  20  Johns. 
(N.  Y.)  411;  Sutliff  v.  Forgey,  1  Cow.  (N.  Y.)  89;  Cox  v.  Jagger,  2  Cow.  (N.  Y.) 
638;  Dillon,  C.  J.,  In  Huston  v.  Seeley,  27  Iowa,  198;  Parton  v.  Allison,  109  N. 
a  674,  14  S.  E.  107;  Saltmarsh  v.  Smith,  32  Ala.  404.  But  she  may  mortgage 
it  Ferry  v.  Burnell,  14  Fed.  807;  Pope  v.  Mead,  99  N.  Y.  201,  1  N.  E.  671;  Herr 
V.  Herr,  90  Iowa,  538,  58  N.  W.  897. 

160  Strong  V.  Clem,  12  Ind.  37;    Parton  v.  Allison,  109  N.  C.  674, 14  S.  E.  107. 

161  Jackson  v.  O'Dcnaghy,  7  Johns.  (N.  Y.)  247;  Sheaf e  v.  O'Neil,  9  Mass. 
13;  Parsons,  C.  J.,  in  Inhabitants  of  Windham  v.  Inhabitants  of  Portland, 
4  Mass.  387. 

162  Reynolds  v.  McCurry,  100  HL  358;  Coles  v.  Coles,  15  Johns.  (N.  Y.)  319; 


"96  ESTATKS    AS    TO    QUANTITY LBQAL    LII<-E    ESTATES.  (Ch.  6 

AstignTnent  of  Common  Eight  and  against  Comvion  Right, 

Assignment  of  dower  of  common  right  is  where  the  widow's 
third  is  set  out  to  her  by  metes  and  bounds.^"  Sh6  must  be  given 
an  absolute  and  unconditional  life  estate  in  the  premises  as- 
signed.^'* Assignment  of  common  right  is  the  method  which 
must  be  adopted  by  the  tenant  when  he  makes  the  assignment 
without  the  widow's  consent,"*  or  by  the  sheriff  or  commission- 
ers on  the  order  of  the  court:."*  In  assignment  against  common 
right  the  widow  receives  some  other  share  in  lieu  of  one-third  by 
metes  and  bounds."^  This  kind  of  assignment  is  valid  only  by 
consent  of  the  parties,***  but  they  may  agree  upon  a  share  in  com- 
mon, or  any  other  method,  so  long  as  the  provision  for  the  widow 
is  out  of  the  lands  of  which  she  is  dowable."'  A  parol  assign- 
ment of  dower  by  either  method  is  good,*^*  unless,  as  in  some 
states,  a  writing  or  a  sealed  instrument  is  required  by  statute."* 
If  the  assignment  has  been  of  common  right,  and  subsequently  a 
superior  title  is  enforced  against  the  widow's  share,  so  that  she 
loses  it,  she  can  call  upon  the  other  party  for  a  new  assignment ; 


ITS 


Brown  v.  Adams,  2  Whart  (Pa.)  188.  Cf.  Jones  v.  HoUopeter,  10  Serg.  &  R. 
(Pa.)  326. 

163  2  Scrib.  Dower  (2d  Ed.)  80;  Stevens'  Heirs  ▼.  Stevens,  3  Dana  (B^r.) 
371;  Schnebly  v.  Schnebly,  26  111.  116;  Benner  v.  Bvana,  3  Fen.  &  W.  (Pa4 
464;    French  v.  Pratt,  27  Me.  381. 

i«*  Wentworth  v.  Wentworth,  Cro.  Ellz.  452. 

185  2  Scrib.  Dower  (2d  Ed.)  80. 

166  2  Scrib.  Dower  (2d  Ed.)  582. 

i«7  French  v.  Peters,  33  Me.  396;  French  v.  Pratt,  27  Me.  381;  Marshall 
V.  McPherson,  8  GiU  &  J.  (Md.)  333;  Welch  v.  Anderson,  28  Mo.  293;  Hale 
V.  James,  6  Johns.  Ch.  (N.  Y.)  258. 

168  J  ones  v.  Brewer,  1  Pick.  (Mass.)  314;   Welch  v.  Anderson,  28  Mo.  293. 

i«9  2  Scrib.  Dower  (2d  Ed.)  82;  Hale  v.  James,  6  Johns.  Ch.  (N.  Y.)  258; 
Marshall  v.  McPherson,  8  Gill  &  J.  (Md.)  333;  Fitzhugh  v.  Foote,  3  CaU 
<Va.)  13. 

i"o  Johnson  v.  Nell,  4  Ala.  106;  Curtis  v,  Hobart,  41  Me.  230;  M^erre  v. 
Meserve,  19  N.  H.  240;  Conant  v.  Little,  1  Pick.  (Mass.)  189;  Shattack  v. 
Gragg,  23  Pick.  (Mass.)  88. 

iTi  2  Scrib.  Dower  (2d  Ed.)  74. 

1T2  But  she  gets  only  one-third  of  what  remains.  French  v.  Peters,  33  Me. 
896;  Maute  v.  Buchanan,  1  Md.  Ch.  202;  Holloman  v.  Holloman,  5  Smedes 
&  M-  (Miss.)  559;    St  Clair  T.  Williams,  7  Ohio,  pt  2,  p.  110. 


§    54)  DOWEE ASSIGNMENT-  97 

and  the  same  right  exists  in  favor  of  the  heir  against  the  widow.*** 
But  in  an  assignment  against  common  right  there  is  no  such  war- 
ranty, and  each  one  must  bear  any  subsequent  loss  alone.^'* 

54.  WHEN  VAIiUE  ESTIMATED— Agrainst  an  heir,  dower 
is  estimated  at  the  time  of  assignment;  aguinst  a 
grantee  of  the  husband,  at  the  time  of  alienation  in 
some  states,  in  others  at  the  time  of  assignment, 
not  including  improvements. 

The  widow's  one-third  or  one-half  is  measured  by  the  value  of 
the  hireband's  estates,  not  by  the  quantity  of  land.  Against  the 
husband's  heirs,  this  value  is  estimated  as  of  the  time  of  assign- 
ment.^''* If  the  heir  improves  the  land  before  assignment,  the 
v/idow  has  dower  in  the  increased  value.^^*  But  in  the  United 
States  improvements  made  by  an  alienee  of  the  husband  are  not 
subject  to  dower.^^^  In  some  states  the  widow  is  dowable,  as 
against  such  alienee,  of  any  increased  value  of  the  land,'^''  while 

17  s  Singleton's  Ex'r  v.  Singleton's  Heirs,  5  Dan*  (Ky.)  87. 

174  French  v.  Pratt,  27  Me.  381. 

17  5  McGehee  v.  McGehee,  42  Miss.  747;  McClanahan  v.  Porter,  10  Mo. 
746.  It  is  so  proTided  in  so-me  states  by  statute.  1  Stim.  Am.  St.  Law,  § 
3279;  2  Scrib.  Dower  (2d  Ed.)  634;  1  Shars.  &  B.  Lead.  Cas.  Real  Prop.  401, 
And  see  Verlander  v.  Harvey,  36  W.  Va.  374,  15  S.  E.  &4. 

17  6  Larrowe  v.  Beam,  10  Ohio,  498;  Price  v.  Hobbs,  47  Md.  359.  It  is  other- 
wise by  statute  in  some  states,  2  Scrib.  Dower  (2d  Ed.)  597;  1  Share.  &  B. 
Lead.  Cas.  Real  Prop.  401. 

177  Summers  v.  Babb,  13  111.  483;  Powell  v.  Manufacturing  CJo.,  3  Mason, 
347,  Fed.  Cas.  No.  11,356;  Barney  r.  Frowner,  9  Ala.  901;  Stookey  v.  Stookey, 
89  IlL  40;  Scammon  v.  CampbeU,  75  111.  223;  Wilson  v.  Oatman,  2  Blaekf. 
(Ind.)  223;  Dashiel  v.  CoUier,  4  J.  J.  Marsh.  (Ky.)  601;  Price  v.  Hobbs,  47  Md. 
359;  AyCT  v.  Spring,  9  Mass.  8;  Johnston  v.  Vandyke,  6  McLean,  422,  Fed. 
Cas.  No.  7,426;  Catlin  v.  Ware,  9  Mass.  218;  Humphrey  v.  Phinney,  2  Johns. 
(N.  Y.)  484;  Thompson  v.  Morrow,  5  Serg.  &  R.  (Pa.)  289;  Young  v.  Thrasher, 
115  Mo.  2^,  21  S.  W.  1104;    Morgan  v.  Hendrew,  102  Ala.  245,  14  South.  540. 

17  8  Thompson  v.  Morrow,  5  Serg.  &  R.  (Pa.;  289;  Fritz  v.  Tudor,  1  Bush 
(Ky.)  28;  McClanahan  v.  Porter,  10  Mo.  746;  Dunseth  v.  Bank,  6  Ohio,  76; 
Walker  v.  Schuyler,  10  Wend.  (N.  Y.)  480;  Powell  v.  Manufacturing  Co.,  3 
Mason,  347,  Fed.  Cas,  No.  11,356.  And  conversely  she  must  bear  any  depre- 
ciation in  value.    Westeott  v.  Campbell,  11  R.  L  378;    McClanahan  t.  Porter, 

RSAI.PROP. — 7 


98  KSTATBS    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   6 

in  others  she  takes  her  share  of  the  value  at  the  time  of  aliena- 
tion."' 


55.  METHOD  OF  DIVISION— Land  subject  to  dower  is 
divided  by  metes  and  bounds  when  practicable; 
otherwise,  it  is  sold,  and  the  proceeds  divided. 

Whenever  possible,  the  widow's  interest  in  the  dower  lands  is 
set  out  to  her  by  metes  and  bounds.  In  assigning  dower  the  con- 
venience and  interests  of  all  parties  concerned  should  be  consid- 
ered. A  widow  may  be  given  one  of  three  parcels  of  land,  instead 
of  one-third  of  each.^""  But  if  the  several  parcels  have  been 
aliened  to  different  persons  by  the  husband,  dower  must  be  as- 
signed in  each  one,^"  If  only  part  of  them  have  been  sold,  then 
dower  is  to  be  assigned  in  what  remains,  if  sufficient,  and  the 
alienees  exonerated.^*'  In  some  states  the  dwelling  house  is  to  be 
included  in  the  widow's  share,^*'  and,  when  her  third  does  not 
entitle  her  to  all  of  it,  certain  rooms  may  be  assigned,  with  a  right 
to  use  the  halls  and  stairs.^**  WhCT«  lands  are  held  by  the  hus- 
band as  a  co-tenant  with  others,  dower  may  be  assigned  in  com- 
ic Mo.  746;  Braxton  v.  Coleman,  5  Call  (Ya4  433;  Sanders  t.  McMlllian,  98 
Ala.  144,  11  South.  750. 

1T9  Hale  V.  James,  6  Johns.  Ch,  (N.  Y.)  258;  Walker  v.  Schuyler,  10  Wend. 
(N.  T.)  480;   Guerin  y.  Moore,  25  Minn.  462;  Tod  v.  Baylor,  4  Leigh  (Va.)  498. 

i»«  Jones  V.  Jones,  Busb.  (N.  C.)  177;  Rowland  v.  Carroll,  81  111.  224;  Alder- 
son's  Heirs  v.  Henderson,  5  W,  Va.  182;  1  Stim,  Am.  St.  Law,  §  3277  B.  Contra, 
Hardin  v.  Lawrence,  40  N.  J.  Eq.  154. 

181  Coulter  V.  Holland,  2  Har.  (Del.)  330;  Cook  v.  Fisk,  1  Walk.  (Miss.)  423; 
EUicott  V.  Mosier,  11  Barb.  (N.  Y.)  574;  Thomas  v.  Hesse,  34  Mo.  13;  Fosdick 
T.  Gooding,  1  GreenL  (Me.)  30;  Peyton  v.  JefEries,  50  IlL  143;  Droste  v.  Hall 
(N.  J.  Ch.)  29  AtL  437. 

182  2  Scrib.  Dower  (2d  Ed.)  637;  Wood  v.  Keyes,  6  Paige  (N.  Y.)  478;  Lawson 
T.  Morton,  6  Dana  (Ky.)  471;  Morgan  v.  Conn,  3  Bush  (Ky.)  58;  Goodmna  v. 
Goodrum,  56  Ark.  532,  20  S.  W.  353. 

188  1  Stim.  Am.  St  Law,  §  3277  B;  1  Shars.  &  B.  Lead.  Cas,  Real  Prop.  398. 
And  see  Christopher  v.  Christopher,  92  Tenn.  408,  21  S.  W.  890. 

184  White  V.  Story,  2  Hill  (N.  Y.)  543;  Stewart  v.  Smith,  39  Barb.  (N.  Y.) 
167;  Patch  v.  Keeler,  27  Vt  252;  Symmes  t.  Drew,  21  Pick.  (Mass.)  278; 
Parrish  v.  Parrish,  88  Va.  529,  14  S.  E.  325. 


§    56)  DOWER BY    WHOM    ASSIGNED.  99 

mon."»  Sometimes,  as  in  case  of  a  mine,  mill,  or  ferry,  the  only 
practical  method  of  assigning  dower  is  to  give  alternate  enjoy- 
ment ^"  or  to  divide  the  profits."^  When  a  division  is  impossible, 
or  would  cause  considerable  loss,  the  land  subject  to  dower  is 
sold.""  When  there  has  been  a  sale,  or  when  there  is  a  sum  of 
money  in  court  subject  to  dower,  there  are  two  ways  of  making 
the  assignment.  In  some  jurisdictions  one-third  is  invested  and 
the  proceeds  paid  to  the  vndow  during  her  life."»  In  others,  she 
is  given  a  gross  sum  at  once,  equal  to  the  present  worth  of  an 
annuity  for  the  probable  duration  of  her  life.^'" 

56.  BY  WHOM  ASSIGNED— Dower  can  be  assigned  only 
by  the  tenant  of  the  freehold,  except  in  a  few 
states,  where  the  probate  court  is  given  the  power. 

Dower  can  be  voluntarily  assigned  only  by  the  tenant  of  the  f ree- 
hold,^^i  and  any  one  may  assign  dower  who  could  be  compelled  to 
by  suit^"     So  an  assignment  by  an  infant  "'  or  a  guardian  is 

1"  Parrish  v.  Parrish,  88  Ya,  529,  14  S.  E.  325, 

186  Smith's  Heirs  v.  Smith,  5  Dana  (Ky.)  179;  Stevens'  Heirs  v.  Stevens,  3 
Dana  (Ky.)  371. 

187  Chase's  Case,  1  Bland  (Md.)  208;  1  Stim.  Am.  St  Law,  §  3276;  1  Share. 
&  B.  Lead.  Cas.  Real  Prop.  396.  And  see  Heisen  v.  Heisen,  145  111.  658,  34  N. 
E.  597. 

1S8  See  1  Stim.  Am.  St  Law,  §  3276. 

189  Hisbie  v.  Westlalie,  14  N,  Y.  281;  Tabele  v.  Tabele,  1  Johns.  Ch.  (N.  Y.) 
45;  Bonner  v.  Peterson,  44  111.  253. 

i»«  Williams'  Case,  3  Bland  (Md.)  186,  221;  Eagle  v.  Emmet  4  Bradf.  Sur. 
(N.  Y.)  117;  Sherard  v.  Sherard's  Adm'r,  33  Ala.  488.  For  the  calculation  of 
this  (and  the  use  of  life  tables),  see  2  Scrib.  Dower  (2d  Ed.)  678;  Brown  v. 
Bronson,  35  Mich.  415;  70  Ga.  Append,  pp.  S43-S4S;  Stein  v.  Stein,  SO  Md.  306, 
30  Atl.  703;   and  ante,  p.  60. 

191  Hill's  Adm'rs  v.  MitcheU,  5  Ark.  608;  Drost  v.  Hall,  52  N.  J.  Eq.  68,  28 
AtL  81;  Id.  (N.  J.  Ch.)  29  AO.  437  (a  chattel  interest  gives  no  power  to  assign). 
But  see  2  Scrib.  Dower  (2d  Ed.)  76. 

192  Robinson  v.  Miller,  1  B.  Mon.  (Ky.)  88;  Lenfers  v.  Henke,  73  HI.  405; 
Meserve  v.  Meserve,  19  N.  H.  240;  Richardson  v.  Harms,  11  Misc.  Rep.  254, 
32  N.  Y.  Supp.  808.  And  see,  as  to  parties  to  suit,  Kenyon  v.  Kenyon  (R.  I.) 
23  AtL  101;  Parton  v.  Allison,  111  N.  a  429,  16  S.  E.  415;  Cobum  v.  Herring- 
ton,  114  111.  104,  29  N.  E.  478. 

193  2  Scrib.  Dower  (2d  Ed.)  78;  Curtis  v.  Hobart,  41  Me.  230. 


100  ESTATES    AS    TO    QUANTirY LEGAL    LIFE    ESTATES.  (Ch.   6 

good.^»*  Where  a  minor  heir  has  made  an  excessive  assijj^nment, 
he  may  have  a  redistribution  on  reaching  his  majority.^"'  In  a 
number  of  states  dower  may  be  assigned  by  the  probate  court  in 
which  the  husbimd's  estate  is  being  settled.^^* 


57.  RECOVERY  BY  ACTION"— The  procedure  for  the  re- 
covery of  dower  wrongfully  detained  varies  greatly 
in  the  several  states.  In  most  states  no  demand  is 
necessary  before  bringing  suit. 

Proceedings  to  Recover  Dower, 

If  dower  is  not  assigned  by  the  one  whose  duty  it  is  to  do  so, 
the  widow  can  i-esort  to  the  courts  to  compel  assignment."^  The 
procedure  varies  in  the  several  states.  It  may  be  (1)  by  a  pro- 
ceeding at  common  law/»«  (2)  in  equity,"*  (3)  by  ejectment,2oo 
or  (4)  by  a  summary  proceeding  provided  by  statute.***^  It  is  not 
generally  necessary  to  make  a  demand  before  bringing  suit  for 
dower,2°='  except  as  to  damages;   but,  in  jurisdictions  where  it  is 

10*  Jones  V.  Brewer,  1  Pick.  (Mass.)  314;  Boyers  v.  Newbaaks,  2  Ind.  388. 
But  see  Bonner  v.  Peterson,  44  lU.  2G0.    For  assignment  by  a  joint  tenant,  see 

2  Scrib.  Dower  (2d  Ed.)  79. 

195  JtlcCormick  v.  Taylor,  2  Ind.  336. 

198  1  Stim.  Am.  St.  Law,  §  3272. 

107  The  action  must  be  brousbt  where  the  land  is  situated.    Lamar  v.  Scott, 

3  Strob.  (S.  C.)  502.     The  rule  is  not  uniform  as  to  when  the  action  may  Ije 
commenced.     See  1  Stim.  Am.  St.  Law,  §  3271;  2  Scrib.  Dower  (2d  Ed.)  109. 

198  See  Ship.  Com.  Law  PI.  (2d  Ed.)  p.  6;  2  Scrib.  Dower  (2d  Ed.)  91;  Wil- 
liams, Real  Prop.  (17th  Am.  Ed.)  p.  380,  note.  And  see  Hurd  v.  Grant,  3  Wend. 
(N.  Y.)  340;   Miller  v.  Beverly,  1  Hen.  &  M.  (Va.)  368. 

109  2  Scrib.  Dower  (2d  ¥A.)  145.  The  equitable  remedy  is  sometimes  ex- 
clusive. McMahan  t.  Kimball,  3  Blackf.  (Ind.)  1;  Chiswell  v.  Morris,  14  N.  J. 
Eq.  101;  Davis  v.  Davis,  5  Mo.  183;  Smart  v.  Waterhouse,  10  Yerg.  (Tenn.) 
M. 

200  2  Scrib.  Dower  (2d  Ed.)  119;  1  Washb.  Real  Prop.  (5th  Ed.)  286;  Ellieott 
V.  Mosier,  11  Barb.  (N.  Y.)  574.  But  not  in  some  states  before  assignment.  2 
Scrib.  Dower  (2d  Ed.)  115. 

101  1  stim.  Am.  St.  Law,  §  3274;  2  Scrib.  Dower  (2d  Ed.)  175. 

so 2  Scrib.  Dower,  c  6,  §  1;  Jackson  v.  Churchill,  7  Cow.  (N.  Y.)  287;  Hopper 
T.  Hopper,  22  N.  J.  Law,  715. 


f§   58-59)  DOWER INCIDENTS..  lOl 

required,*"  it  mnst  be  of  the  tenant  of  the  freehold,*'*  and  should 
contain  a  general  description  of  the  premises  out  of  which  dower 
is  demanded-*'*' 

SAME— INCIDENTS. 

58.  A  dowress  has,  in  the  land  assigned  as  her  dower,  the 

usual  rights  of  a  tenant  for  life. 

59.  On  the  death  of  the  dowress,  the  owner  of  the  land  is 

entitled  to  possession  at  once. 

When  dower  has  been  assigned,  i.  e.  set  apart  to  her,  the  widow 
has,  in  such  realty,  an  estate  subject  to  the  usual  incidents  of  life 
estates.^"^®  She  may  sell  or  lease  the  whole  or  any  part  of  it.^**^ 
She  has  not  only  the  usual  right  to  emblements,*'^*  but  she  has 
also  the  crops  sown  on  the  dower  land  by  her  husband,*°^  or  by 
the  heir  before  assignment.-^"  The  dowress  may  take  reasonable 
estovers,^^^  and,  when  the  land  assigned  consists  of  several  parcels, 
she  may  take  wood  from  one  parcel  for  use  on  another.*^*  The 
duty  to  repair  is  doubtful  where  not  provided  for  by  statute,  as  is 
the  case  in  several  states.*^^  The  tenant  in  dower  must  not  com- 
mit waste,^^*  and  she  must  keep  down  the  interest  on  incumbran- 

203  2  Scrib.  Dower  (2d  Ed.)  109. 

*o*  Id.  110.    Cf.  Young  v.  Tarbell,  37  Me.  509. 

20  0  Haynes  v.  Powers,  22  N.  H.  590;  Davis  v.  Walker,  42  N.  H.  482;  Ford  v. 
Erskine,  45  Me.  484;  Atwood  v.  Atwood,  22  Pick.  (Mass.)  283.  And  see  Falls 
T.  Wright,  55  Ark.  562,  18  S.  W.  1044. 

206  Whyte  v.  Mayor,  etc.,  of  Nashville,  2  Swan  (Tenn.)  364. 

2C7  Summers  v.  Babb,  13  111.  483.  Cf.  Matlock  v.  Lee,  9  Ind.  298;  StockweU 
V.  Sargent,  37  Vt.  16. 

208  See  Talbot  v.  Hill,  68  111.  106.  Any  doubt  as  to  this  was  removed  by  the 
statute  of  Merton  (20  Hen.  UI.  c,  2),  which  has  been  generally  recognized 
or  re-enacted  in  this  country.  2  Scrib.  Dower  (2d  Ed.)  779;  1  Stim.  Am. 
St  Law,  §  3233. 

209  Ralston  v.  Ralston,  3  G.  Greene  (Iowa)  533.  Cf.  Kain  v.  Fisher,  6  N. 
T.  597;    Street  v.  Saunders,  27  Ark.  554;    Budd  v.  HUer,  27  N.  J.  Law,  43. 

210  Parker  v.  Parker,  17  Pick.  (Mass.)  236. 

211  White  V.  Cutler,  17  Pick.  (Mass.)  248. 

212  Childs  v.  Smith,  1  Md.  Ch.  483.  But  cf.  Cook  v.  Cook,  11  Gray  (Mass.) 
123;    Noyes  v.  Stone  (Mass.)  40  N.  E.  856. 

213  1  Stim.  Am.  St.  Law,  §  3232;   Beers  v.  Strong,  Kirb.  (Conn.)  19. 
21*  See  post,  p.  ILL 


102  ESTATES    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   6 

ces,'"  and  pay  the  taxes.*"  There  can  be  no  claim  for  improve- 
ments made  by  the  widow  or  her  assignee.*"  If  she  has  leased  the 
premises,  her  personal  representative  is  entitled  to  the  rent  due 
at  her  death.*^" 

The  reversion  or  i-emainder  in  fee  simple  after  the  life  estate  of 
the  dowress  descends  to  the  husband's  heirs,  or  goes  to  his  devisees, 
as  the  case  may  be.  If  the  land  was  aliened  by  the  husband  by  a 
conveyance  not  good  against  the  wife,  the  grantee's  estate  is  by  the 
assignment  of  dower  defeated  during  the  life  of  the  dowress.  On 
her  death,  the  reversioner,  remainder-man,  or  grantee  is  at  once 
entitled  to  possession  of  the  land,  subject  to  any  right  to  emble- 
ments that  may  exist.* ^* 

SAME— HOW  DEFEATED. 

60.  The  right  to  dower  may  be  defeated  by: 
(a;  Alienage  of  husband  or  -vsrife,  in  some  states  (p.  103). 

(b)  Elopement    and    living  in  adultery  by  the  wife,  in 

most  states  (p.  103). 

(c)  Annulment  of  marriage  (p.  104), 

(d)  Divorce,  in  many  states  (p.  104). 

(e)  Loss  of  husband's  seisin  (p.  104). 

(f)  Conveyance  by  husband: 

(1)  Before  marriage  (p.  105). 

(2)  After  marriage,  in  some  states  (p.  105). 

(g)  Release  by  wife  (p.  106). 
(h)  Jointure,  which  is  either: 

(1)  Legal,  or 

(2)  Equitable  (p.  107). 

SI 5  2  Scrib.  Dower  (2d  Ed.)  783. 

210  Graham  v.  Dunigan,  2  Bosw.  (N.  T.)  516;  Bldwell  T.  Greenshlcld,  2 
Abb.  N.  C  (N.  Y.)  427;  Durkee  v.  Felton,  44  Wis.  4G7;  Linden  v.  Graham, 
34  Barb,  (N.  Y.)  316.  So  of  assessments  for  street  improvements.  Whyte  y. 
Mayor,  etc.,  of  Nashville,  2  Swan  (Tenn.)  364. 

117  Maddoclis  v.  Jellison,  11  Me.  482;  Bent  v.  Weeks,  44  Me.  45;  Cannon 
V.  Hare,  1  Tenn.  Ch.  22. 

S18  2  Scrib.  Dower  (2d  Ed.)  781. 

»i»2  Scrib,  Dower  (2d  Ed.)  783. 


§   60)  DOWEE HOW    DEFEATED.  l03 

(i)  Widow's  election  to  take  a  testamentary  or  statutory- 
provision  in  lieu  of  do\yer  (p.  109). 

(j)  Estoppel  (p.  110). 

(k)  Statute  of  limitations,  in  many  states  (p.  Ill), 

(1)  liaches  in  equity  (p.  111). 

(m)  Waste  after  assignment  which,  causes  a  forfeiture 
in  several  states  (p.  111). 

Alienage, 

At  common  law  there  was  no  dower  when  either  husband  or 
wife  was  an  alien.^^"  The  statutes  of  many  states  have  changed 
the  rule,*^*  but  their  effect  is  not  retroactive,  so  as  to  give  dower 
in  lands  sold  before  the  enactment.**' 

Elopement  and  AchtZtery. 

By  the  statute  of  Westminster  II.,**»  which  has  been  re-«i- 
acted  ***  or  recognized  in  most  states,  a  wife  forfeits  her  dower  if 
she  elope  and  live  in  adultery,**"*  unless  there  be  a  subsequent 

220  2  Bl.  Coram.  131;  Co.  Litt.  31b;  Calvin's  Case,  7  Coke,  25a;  Wight- 
man  v.  Laborde,  Speer  (S.  C.)  525. 

2211  Stim.  Am.  St.  Law,  §§  102,  6013;  1  Scrib.  Dower  (2d  Ed.)  156;  1 
Washb,  Real  Prop.  (5th  Ed.)  80,  note;  1  Shars.  &  B.  Lead.  Gas.  Real  Prop. 
303,  515.  In  Michigan  and  Wisconsin,  by  statute,  lands  conveyed  by  a  noa- 
resident  owner  are  not  subject  to  dower.  Ligare  v.  Semple,  32  Mich.  43S. 
Cf.  Bear  v.  Stahl,  61  Mich.  203,  28  N.  W.  69;  Bennett  v.  Harms,  51  Wis.  251, 
8  N.  W.  222. 

225  Priest  v.  Cummings,  20  Wend.  (N.  Y.)  338.  Cf.  White  v.  White,  2  Mete 
(Ky.)  185.  ■ 

223  13  Edw.  L  c  34. 

224  1  Stim.  Am.  St  Law,  §  3246  A  a);  2  Scrib.  Dower  (2d  Ed.)  535;  1  Shars. 
&  B.  Lead.  Cas.  Real  Prop.  384. 

226  Adultery  without  elopement  does  not  bar.  Cogswell  v.  Tibbetts,  3  N. 
H.  41;  Reel  v.  Elder,  62  Pa.  St  308;  Ondis  v.  Bates,  7  Kulp  (Pa.)  309.  If 
there  has  been  a  separation  for  any  cause  whatever,  a  subsequent  adultery 
will  be  a  bar.  Woodward  v.  Dowse,  10  C.  B.  (N.  S.)  722;  Hethrington  v. 
Graham,  6  Bing.  135.  Cf.  Goss  v.  Froman,  89  Ky.  318,  12  S.  W.  387;  Watters 
v.  Jordan,  13  Ired.  (N.  C.)  361.  But  if  the  husband  drives  the  wife  away,  or 
deserts  her,  dower  is  not  lost  by  adultery  committed  afterwards.  Heslop  v. 
Heslop,  82  Pa.  St  537;  Rawlins  v.  Buttel,  1  Houst  (DeL)  224.  And  see 
Reynolds  v.  Reynolds,  24  Wend.  (N.  Y4  133. 


104  ESTATES    AS    To    t^UANTITY I.KGAL    LIKE    ESTATES.  (Ch.   6 

reconciliation.**'     And  in  a  few  states  an  abandonment  of  tlie  hus- 
band will  cause  a  forfeiture  of  dower.**' 

Ann^dment  of  Marriage  and  Divorce. 

When  a  marriage  is  terminated  by  a  decree  of  nullity,  dower  is 
barred,*^®  and  an  absolute  divorce  has  the  same  effect  in  many 
states,**'  while  in  others  divorce  is  no  bar.**® 

Loss  of  Husband's  Estate. 

When  the  husband  loses  his  estate  by  the  enforcement  of  a  para- 
mount title  or  incumbrance,  the  wife  has  no  dower.*'^  Debts 
which  had  become  charges  on  the  land  before  marriage  defeat 
dower  when  enforced.*^*  So  dower  is  barred  if  the  husband's  land 
is  taken  under  the  right  of  eminent  domain.*** 

»26  See  2  Scrib.  Dower  (2d  Ed.)  539. 
«2T  1  stim.  Am.  St  taw,  §  33«5  B. 
22  8  2  Scrib.  Dower  (2d  Ed.)  541. 

229  1  stim.  Am.  St  Law,  §§  3246  C,  6251  a);  1  Shars.  &  B.  Lead.  Cas.  Real 
Prop.  386.  And  see  PuUen  v.  Pullen,  52  N.  J.  Eq.  9,  28  Atl.  719;  Thorns  v. 
King,  95  Tenn.  GO,  31  S.  W.  983.  As  to  the  effect  of  limited  divorce,  see  1 
Stim.  Am.  St  Law,  §  6306.  And  see  Van  Cleaf  v.  Bums,  133  N.  Y.  540,  30 
N.  E.  661;    Chapman  v.  Chapman,  48  Kan.  636,  29  Pac.  1071. 

230  1  Stim.  Am.  St  Law,  §§  3246  C,  6251. 

23iToomey  v.  McLean,  105  Mass.  122;  Stirbling  v.  Ross,  16  ID.  122;  Me- 
Clure  V.  Fairfield,  153  Pa.  St.  411,  26  Atl.  446;  Vickers  v.  Henry,  110  N.  C. 
371,  15  S.  E.  115;  Waller  v.  Waller's  Adm'r,  33  Grat  (Ya.)  83.  And  see  ante, 
p.  89. 

2  32  Trustees  of  Poor  of  Queen  Anne's  Co.  v.  Pratt  10  Md.  5;  Mantz  v.  Bu- 
chanan, 1  Md.  Ch.  202;  Holden  v.  Boggess,  20  W.  Va.  62;  Sandford  v.  Mc- 
Lean, 3  Paige  (N.  Y.)  117;  Bobbins  v.  Bobbins,  8  Blackf.  (Ind.)  174;  Griffin 
V.  Reece,  1  Har.  (Del.)  508.  But  see  House  v.  Fowle,  22  Or.  303,  29  Pac.  890; 
Whiteaker  v.  Belt  25  Or.  490,  36  Pac.  534;  Dayton  v.  Corser,  51  Minn.  406, 
53  N.  W.  717;  Vinson  v.  Gentry  (Ky.)  21  S.  W.  578;  Butler  v.  Fitzgerald,  43 
Neb.  192,  61  N.  W.  640.  Bankruptcy  of  the  husband  during  coverture  is  no 
bar.  Porter  v.  Lazear,  109  U.  S.  84,  3  Sup.  Ct  58;  Id.,  87  Pa.  St  513;  In 
re  Bartenbach,  11  N.  B.  R.  61,  Fed.  Cas.  No.  1,068;  In  re  Lawrence,  49  Conn. 
411.  Cf.  Dudley  v.  Easton,  104  U.  S.  99.  The  wife  is,  in  some  states,  allow- 
ed dower  on  bankruptcy  of  husband  as  in  case  of  death.  Warford  v.  Noble, 
9  Biss.  320,  2  Fed.  202;    Rhea  v.  Meridith,  6  Lea  (Tenn.)  605. 

238  Moore  v.  Mayor,  etc.,  8  N.  Y.  110;  Baker  v.  Railway  Co.,  122  Mo.  396, 
SO  S.  W.  301;  French  v.  Lord.  69  Me.  537.  But  see  Nye  v.  Railroad  Co.,  113 
Mass.  277.  The  dower  right  attaches  to  the  proceed,s.  Bonner  v.  Peterson, 
M  111.  253;    In  re  New  York  &  B.  Bridge,  75  Hun,  558,  27  N.  Y.  Supp.  597; 


§    60)  DOWER HOW    DEFEATED.  105 

Devices  to  Bar  Dower. 

The  husband  Eiay  have  estates  conveyed  to  him  under  such  limi- 
tations that  dower  will  not  attach.     These  are  called  "devices  to 
bar  aower."  "* 
Conveyance  by  JJusband, 

Conveyances  by  the  husband  before  marriage  prevent  dower  at 
taching,"''  unless  made  to  defraud  the  wife;  ^^°  but  no  alienation  or 
incumbrance  by  the  husband  alone  during  the  coverture  is  good 
against  the  wife,^"  nor  is  a  bona  fide  purchaser,  ignorant  of  her 
dower  right,  protected."^  But  by  statute  in  some  states  the  hus- 
band's alienations  are  made  effectual  against  the  wife."^      The 

Wheeler  v.  Klrtland,  27  N.  J.  Eq.  534.  A  dedication  of  land  to  public  uses 
bars  dower.  Gwynne  v.  City  of  Cincinnati,  3  Oliio,  24;  Steel  v.  Board  of 
Education,  31  Wkly.  Cin.  Law  Bui.  84;  Duncan  v.  City  of  Terre  Haute,  85 
Ind.  105;  Venable  v.  Railway  Co.,  112  Mo.  103,  20  S.  W.  493.  And  see  Chou- 
teau V,  Railway  Co.,  122  Mo.  375,  22  S.  W.  458,  and  30  S.  W.  299. 
2  34  For  examples  of  these,  see  2  Minor,  Inst.  146;    Ray  v.  Pung.  5  Bai-n. 

6  Aid.  561. 

23  5  Oakley  v.  Oakley,  69  Hun,  121,  23  N.  Y.  Supp.  267;    Rawlings  v.  Adams, 

7  Md.  26;  Richardson  v.  Skolfield,  45  Me.  386;  Kintner  v.  McRae,  2  Ind. 
453;  Gaines  v.  Gaines'  Ex'r,  9  B.  Mon.  (Ky.)  295;  Firestone  y.  Firestone,  2 
Ohio  St.  415.    But  see  In  re  Pulling's  Estate,  97  Mich.  375.  56  N.  W.  765. 

23  6  Such  as  a  secret  conveyance  on  the  day  before  marriage.  Stewart's 
Lessee  v.  Stewart,  3  J.  J.  Marsh.  (Ky.)  48;  Cranson  v.  Cranson,  4  Mich.  230; 
Pomeroy  v.  Pomeroy,  54  How.  Prac.  (N.  Y.)  228;  Brewer  v.  Connell,  11 
Humph.  (Tenn.)  500;    Brooks  v.  McMeekin,  37  S.  C.  285,  15  S.  E.  1019. 

237  Rank  v.  Hanna,  6  Ind.  20;  Thompson  v.  McCorkle,  136  Ind.  484,  34  N. 
E.  813;  Graves  v.  Fligor,  140  Ind.  25,  38  N.  E.  853;  Chase  v.  Van  Meter,  140 
Ind.  321,  39  N.  E.  455;  Venable  v.  Railway  Co.  (Mo.  Sup.)  19  S.  W.  45;  Deans 
V.  Pate,  114  N.  C.  194,  19  S.  E.  146;  Stein  v.  Stein,  80  Md.  306,  30  Atl.  703; 
1  Stim.  Am.  St.  Law,  §  3249;  1  Shars.  &  B.  Lead.  Cas.  Real  Prop.  333.  The 
grantee  of  the  husband  is  estopped  to  deny  the  husband's  title,  Browne  v. 
Potter,  17  Wend.  (N.  Y.)  164;  but  not  when  the  conveyance  is  a  quitclaim. 
Sparrow  v.  Kingman,  1  N.  Y.  242.  And  see  Coakley  v.  Perry,  3  Ohio  St.  344; 
Gardner  v.  Greene,  5  R.  I.  104. 

23  8  Dick  V.  Doughten,  1  Del.  Ch.  320.  The  purchaser's  estate  is  only  de- 
feated as  to  one-third  during  the  life  of  the  dowress.    Id. 

281)  As  where  she  is  dowable  only  of  lands  of  which  he  died  seised.  1  Stim. 
Am.  St  Law,  §  3202  E;  1  Shars.  &  B.  Lead.  Cas.  Real  Prop.  334.  And  see  Mc- 
Rae V.  McRae,  78  Md.  270,  27  Atl.  1038.  But  a  voluntary  conveyance  for  the 
purpose  of  defeating  dower  will  be  ineffectual.  Jiggitts  v.  Jiggitts,  40  Miss. 
718;    Mcintosh  v.  Ladd,  1  Humph.  (Tenn.)  458;   Thayer  v.  Thayer,  14  Vt.  107. 


106  ESTATES    AS   TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   6 

doctrine  of  conversion  may  operate  in  other  cases  to  cut  off  dower, 
as  when,  before  marriage,  the  husband  has  made  a  binding  con- 
tract to  sell.^*"  On  the  other  hand,  the  widow  of  the  purchaser 
would  be  entitled  to  dower.^*^  So,  too,  there  would  be  dower  in 
money  directed  to  be  laid  out  in  land,^^-  but  not  in  land  ordered 
to  be  tui-ned  into  money.^*^  In  several  states,  if  the  husband  make 
an  exchange  ***  during  coverture  of  one  tract  of  land  for  another, 
his  widow  cannot  have  dower  in  both  tracts.  She  must  elect  out 
of  which  she  will  claim.^*' 
Release  hy   Wife. 

The  wife  may,  however,  release  her  inchoate  right  of  dower  to 
her  husband's  alienee,-*®  but  not  to  the  husband  himself,^*^  or  to 

Contra,  Flowers  v.  Flowers,  89  Ga.  632,  15  S.  E.  834.  And  see  Patterson  v. 
Patterson  (Ky.)  24  S.  W.  880;  Brandon  v.  Dawson,  51  Mo.  App.  237.  And  cf. 
Jenny  v.  Jenny,  24  Vt  324;    McGee  v.  McGee's  Heirs,  4  Ired.  (N.  C.)  lOo. 

2*0  Rawlings  v.  Adams,  7  Md.  2G;  Hunkins  v.  Hunkins,  65  N.  H.  95,  18 
Atl.  655. 

2*1  1  Stim.  Am.  St.  Law,  §  3212;  Koed  v.  Whitney,  7  Gray  (Mass.)  533; 
(3hurch  v.  Church,  3  Sandf.  Ch.  (N.  Y.)  434;  Duke  v.  Brandt,  51  Mo.  221; 
Thompson  v.  Thompson,  1  Jones  (N.  C.)  430.  But  see  Lobdell  v.  Hayes,  4 
Allen  (Mass.)  187.  But  the  purchase  money  must  have  been  paid.  Taylor  v. 
Kearn,  68  111.  339;  Greenbaum  v.  Austrian,  70  111.  591;  Crawl  v.  Harrington, 
33  Neb.  107,  49  N.  W.  1118;    Pugh  v.  Bell,  2  T.  B.  Mon.  (Ky.)  125. 

2*2  1  Scrib.  Dower  (2d  Ed.)  450. 

2*8  1  Scrib.  Dower  (2d  Ed.)  458. 

2**  See  post,  p.  407. 

«*B  Stevens  v.  Smith,  4  J.  J.  Marsh.  (Ky.)  64;  Mahoney  v.  Young,  3  Dana 
(Ky.)  588.  And  so  by  statute.  1  Stim.  Am.  St.  Law,  §  3218;  1  Shars.  &  B. 
Lead.  Cas.  Real  Prop.  346.  But  cf.  Wilcox  v.  Randall,  7  Barb.  (N.  Y.)  633; 
Cass  V.  Thompson,  1  N.  H.  65. 

248  Fowler  v.  Shearer,  7  Mass.  14;  Kirk  v.  Dean,  2  Bin.  (Pa.)  341;  Chi- 
cago Dock  Co.  V.  Kinzie,  49  111.  289;  Howlett  v.  Dilts,  4  Ind.  App.  23,  30  N. 
E.  313;  Ortman  v.  Chute,  57  Minn.  452,  59  N.  W.  533;  Saunders  v,  Blythe, 
112  Mo.  1,  20  S.  W.  319;  Shinkle's  Assignees  v.  Bristow,  95  Ky.  84,  23  S.  W. 
670.  Cf.  Stull  V.  Graham,  60  Ark.  461,  31  S.  W.  46.  If  the  husband's  deed  is 
avoided,  her  dower  is  restored.  Robinson  v.  Bates,  3  Mete.  (Mass.)  40;  Wood- 
worth  V.  Paige,  5  Ohio  St.  71;  Malloney  v.  Horan,  49  N.  Y.  Ill;  Stinson  v. 
Sumner,  9  Mass.  143;  Blain  v,  Harrison,  11  111.  384;  Morton  v.  Noble,  57 
111.  176;  Summers  v.  Babb,  13  111.  483.  But  see  Den  v.  Johnson,  18  N.  J. 
Law,   87. 

2*7  Carson  v.  Murray,  3  Paige  (N.  Y.)  483;  Martin's  Heirs  v.  Martin,  22 
Ala.  86;  Graham  v.  Van  Wyck,  14  Barb.  (N.  Y.)  531;   Wightman  v.  Schleifer, 


§    60)  DOWER HOW    DEFEATED.  107 

a  stranger.^*'  The  release  must  be  by  deed,  and  the  deed  must 
contain  words  of  grant  or  release,^*'  although  in  a  few  states  a 
mere  signing  of  the  husband's  conveyance  is  sufQcient."'*  The 
form  of  such  deeds  is  in  all  cases  governed  by  local  statute.^"  In 
many  states  a  separate  examination  of  the  wife  is  required."*' 

Jointure — Legal  and  Equitable. 

Legal  jointure  ^^'  is  a  provision,^"  consisting  of  land  exclu- 
sively,"^ made  for  the  wife  in  lieu  of  dower.     It  must  (1)  take 

63  Hun,  633,  18  N.  Y.  Supp.  551;  In  re  Rausch,  35  Minn.  291,  28  N.  W.  920; 
House  V.  Fowle,  22  Or.  303,  29  Pac.  890.  See,  however,  Doremus  v.  Doremus, 
66  Hun,  111,  21  N.  Y.  Supp.  13;  Chittock  v.  Chittock,  101  Mich.  367,  59  N.  W. 
655.  But  the  husband  may  be  her  attorney  in  fact  to  release.  Andrews,  J., 
in  Wronkow  v.  Oakley,  133  N.  Y.  505,  31  N.  E.  521. 

248  Harriman  v.  Gray,  49  Me.  537;  Reiff  v.  Horst,  55  Md.  42;  Marvin  v. 
Smith,  46  N.  Y.  571;  Bethune  v.  McDonald,  35  S.  C.  88,  14  S.  E.  674.  But  cf. 
Bobbins  v.  Kinzie,  45  111.  354. 

249  Powell  V.  Manufacturing  Co.,  3  Mason,  347,  459,  Fed.  Gas.  Nos.  11,356 
and  11,357;  Hall  v.  Savage,  4  Mason,  273,  Fed.  Gas.  No.  5,944;  Lufkin  v. 
Curtis,  13  Mass.  223;  McFarland  v.  Febiger's  Heirs,  7  Ohio,  194;  Carter  v. 
Goodin,  3  Ohio  St.  75;  Stevens  v.  Owen,  25  Me.  94;  Leavitt  v.  Lamprey,  13 
Pick.  (Mass.)  382.    Cf.    Gray  v.  McCune,  23  Pa.  St.  447. 

250Burge  V.  Smith,  7  Fost.  (N.  H.)  332;  Dustin  v.  Steele,  Id.  431;  Smith 
V.  Handy,  16  Ohio,  192;   Daly  v.  Willis,  5  Lea  (Tenn.)  100. 

SOI  For  the  statutory  provisions  In  general,  see  1  Stim.  Am.  St.  Law,  §§ 
8245,  6504;  1  Shars.  &  B.  Lead.  Gas.  Real  Prop.  370.  And  see  Goburn  v. 
Herrington,  114  111.  104,  29  N.  E.  478. 

2  52  1  stim.  Am.  St.  Law,  §  6501  (1);  1  Shars.  &  B.  Lead.  Gas.  Real  Prop. 
372;  2  Scrib.  Dower  (2d  Ed.)  321;   Sibley  v.  Johnson,  1  Mich.  380. 

2  63  For  the  origin  of  jointure,  see  2  Bl.  Gomm.  137;  2  Scrib,  Dower,  p.  367; 
1  Washb.  Real  Prop.  (2d  Ed.)  325. 

2  54  Coke  says  it  must  be  a  competent  livelihood,  but  the  law  gives  no  test. 
Co.  Litt.  36b.  M'Cartee  v.  Teller,  2  Paige  (N.  Y.)  511;  Graham  v.  Graham, 
67  Hun,  329,  22  N.  Y.  Supp.  299;  Taylor  v.  Taylor,  144  111.  436,  33  N.  E.  532. 
And  see  Brandon  v.  Dawson,  51  Mo.  App.  237. 

2  55  So  an  annuity,  unless  charged  on  lands,  would  not  be  good  as  a  join- 
ture. Vance  v.  Vance,  21  Me.  364;  Gibson  v.  Gibson,  15  Mass.  106;  Caruth- 
ers  V.  Caruthers,  4  Brown,  Gh.  500;  Hastings  v.  Dickinson,  7  Mass.  153; 
M'Cartee  v.  Teller,  2  Paige  (N.  Y.)  511.  But  see  Drury  v.  Drury,  2  Eden,  38; 
Earl  of  Buckinghamshire  v.  Drury,  Id.  60  But  by  statute  in  many  states  a 
settlement  of  personalty  is  a  good  jointure.  1  Stim.  Am.  St.  Law,  §  3242. 
Williams,  Real  Prop.  (17th  Am.  Ed.)  note  378;  1  Shars.  &  B.  Lead.  Cas.  Real 
Prop.  356. 


108  ESTATES    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Cll.   6 

effect  immediately  on  tlie  husband's  death;  "«  (2)  be  an  estate  for 
at  least  her  own  life;'"  (3)  be  to  herself,  and  not  in  trust  for 
her;  "'  and  (4)  be  expressed  to  be  in  satisfaction  of  dower.'"* 
But  it  need  not  be  made  by  the  husband.'^"  Legal  jointure  is  a 
bar  to  dower  if  made  before  marriage,  whether  the  wife  assent  or 
not;'°^  but  if  made  during  coverture  she  can  elect  to  take  the 
jointure  or  her  dower.  =^"  In  equity  any  reasonable  provision  "^ 
or  contract  for  provision  ^^*  is  good  as  a  jointure  if  the  intended 
wife  assents.-''''  When  made  after  marriage,  there  is  the  same 
right  of  election  as  in  legal  jointure.^^'®  If  the  widow  be  evicted 
from  her  jointure  lands,  she  is  let  in  to  her  dower  in  proportion 
to  the  amount  lost.'^^ 

2  58  Vance  v.  Vance,  21  Me.  3G4;  Grogan  v.  Garrison,  27  Ohio  St.  50;  Garuth- 
ers  V.  Carutbei's,  4  Brown,  Ch.  500. 

267  Gelzer  v.  Gelzer,  1  Bailey,  Eq.  (S.  C.)  387;  Vernon's  Case,  4  Coke,  1. 
A  term  of  years,  or  an  estate  per  autre  vie.  will  not  suffice.  M'Cartee  v. 
Teller,  8  Wend.  (N.  Y.)  267.    And  see  1  Stim.  Am.  St.  Law,  §  3241. 

258  Co.  Litt.  30b;  Hervey  v.  Hervey,  1  Atk.  561.  But  now  otherwise  by 
statute  in  many  states.  1  Stim.  Am.  St.  Law,  §  3241;  1  Shars.  &  B.  Lead. 
Cas.  Real  Prop.  356. 

259  2  Bl,  Comm.  138;  Vernon's  Case,  4  Coke,  1;  Perry  v.  Perryman,  19 
Mo.  409;    Pepper  v.  Thomas  (Ky.)  4  S.  W.  297. 

260  2  Scrib.  Dower  (2d  Ed.)  404;  Ashton's  Case.  Dyer,  228a.  Contra  in 
Maryland,  by  statute,  2  Code,  Md.  1888,  p.  1411,  art.  93,  §  296;  1  Stim.  Am. 
St.  Law,  §  3241. 

261  2  Scrib.  Dower  (2d  Ed.)  403;  M'Cartee  v.  Teller,  2  Paige  (N.  Y.)  511. 
Cf.  Taft  v.  Taft,  103  Mass.  4^7,  40  N.  E.  8G0.  In  some  states  her  assent  is 
made  necessary  by  statute.  1  Stim.  Am.  St.  Law,  §  3241;  1  Shars.  &  B. 
Lead.  Cas.  Real  Prop.  356. 

262  Bottomly  v.  Spencer,  36  Fed.  732;  Vance  v,  Vance,  21  Me.  364;  Town- 
send  V.  Towusend,  2  Sandf.  (N.  Y.)  711;  Rowe  v.  Hamilton,  3  Greenl.  (Me.) 
63.  For  the  general  principle  of  equitable  election,  see  Fetter,  Eq.  50;  Bisp. 
Eq.  (4th  Ed.)  301. 

268  Tinney  v.  Tinney,  3  Atk.  7;  Andrews  v.  Andrews,  8  Conn.  79.  But  see 
Caruthers  v.  Caruthers,  4  Brown,  Ch.  500;  Blackmon  v.  Blackmon,  16  Ala. 
633;    Charles  v.  Andrews,  2  Eq.  Cas.  Abr.  388. 

264  Vincent  v.  Spooner,  2  Cush,  (Miss.)  467;  Dyke  v.  Rendall,  2  De  Gex  M. 
&  G.  209. 

266  Tisdale  v.  Jones,  38  Barb.  (N.  Y.)  523;  Worrell  v.  Forsyth,  141  111.  22,  30 
N.  E.  673;    Logan  v.  Phillipps,  18  Mo.  22. 

»06  Garrard  v.  Garrard,  7  Bush  (Ky.)  436. 

267  2  Scrib.  Dower  (2d  Ed.)  432;  Gervoyes'  Case,  Moore,  717.    But  see  Beardi 


§    60)  DOWER HOW    DEFEATED.  109 

Widow's  Election — Testamentary  Provision  in  Lieu  of  Dower. 

In  nearly  all  states,  if  the  husband  by  his  will  make  provision 
for  his  wife  expressly  in  lieu  of  dower,  she  must  elect  which  she 
will  take.^**  So,  too,  if  the  devise  is  necessarily  inconsistent  with 
dower.^^*     But  if  the  testamentary  provision  does  not  show  that 

T.  Nutthall,  1  Vern.  427.  But  not  for  elopement  and  adultery,  except  as  chan- 
ged by  statute.  Sidney  v.  Sidney,  3  P.  Wms.  2G9;  Buchanan  v.  Buchanan,  1 
Ball  &  B.  203.  Jointure  Is  now  rare.  It  is  in  some  states  forfeited  for  the 
same  causes  as  dower.    See  1  Stim.  Am.  St  Law,  §  3247  A, 

268  In  re  Johnson's  Estate,  10  Pa.  Co.  Ct.  R.  461;  Warren  v.  Warren,  148 
111.  641,  36  N.  E.  611;  Pellizza.rro  v.  Reppert,  83  Iowa,  497,  50  N.  W.  19;  New- 
man V.  Newman,  1  Brown,  Ch.  186.  But  see  Boiling  v.  Boiling,  88  Va.  524, 
14  S.  E.  67.  By  some  statutes  she  is  presumed  to  elect  dower;  by  others,  the 
will.  1  Stim.  Am.  St.  Law,  §  3264.  And  see  Doty  v.  Hendrix  (Sup.)  16  N.  Y. 
Supp.  284;  Stone  v.  Vandermark,  146  111.  312,  34  N.  E.  150.  So  there  may  be 
a  presumption  of  election  from  lapse  of  time.  Ir  re  Gunyon's  Estate,  85  Wis. 
122,  55  N.  W.  152;  Pratt  v.  Felton,  4  Gush.  (Mass.)  174;  Hastings  v.  Clifford, 
82  Me.  132;  Thompson  v.  Egbert,  17  N.  J.  Lav,  459;  Collins  v.  Carman,  5 
Md.  503;  Malone  v.  Majors,  8  Humph.  (Tenn.)  577;  Allen  v.  Hartnett,  116 
Mo.  278,  22  S.  W.  717.  Cf.  Stone  v.  Vandermark,  146  111.  312,  34  N.  E.  150; 
Duffy  V.  Duffy,  70  Hun,  135,  24  N.  Y.  Supp.  408;  Zimmerman  v.  Lebo,  151 
Pa.  St.  345,  24  Atl.  1082.  Merrill  v.  Emery,  10  Pick.  (Mass.)  507;  Spruance 
V.  Darlington  (Del.  Ch.)  30  Atl.  663.  In  order  that  her  election  be  binding, 
she  must  have  knowledge  of  the  values  of  the  two  estates.  Heuder  v.  Rose, 
3  P.  Wms.  124,  note;  U.  S.  v.  Duncan,  4  McLean  99,  Fed.  Gas.  No.  15,002; 
Goodrum  v.  Goodrum,  56  Ark.  532,  20  S.  W,  353.  As  to  effect  of  election  to 
take  under  the  will,  see  Kuydendall  v.  Devecmon,  78  Mo.  537,  28  Atl.  412; 
Swihart  v.  Swihart,  7  Ohio  Cir.  Ct  R.  338;  Schwatken  v.  Daudt  53  Mo.  App. 
1;  Truett  v.  Funderburk,  93  Ga.  686.  20  S.  E.  260.  The  election  must  be  by 
the  widow  herself,  Boone's  Representatives  v.  Boone,  3  Har.  «&  McH.  (Md.) 
S5;  Sherman  v.  Newton,  6  Gray  (Mass.)  307;  Welch  v.  Anderson,  28  Mo. 
293;  unless  she  is  insane,  when  her  guardian  may  elect  for  her.  Young  v. 
Boardman,  97  Mo.  181,  10  S.  W.  48.  Conti-a,  Lewis  v.  Lewis,  7  Ired.  (N.  C.)  72. 
If  she  elects  to  take  under  the  will,  lands  aliened  by  the  husband  alone  are 
freed  from  dower.  Allen  v.  Pray,  12  Me.  138;  Fairchild  v.  Marshall,  42 
Minn.  14,  43  N.  W.  563;  In  re  Machemer's  Estate,  140  Pa.  St.  544,  21  Atl. 
441;  Spalding  v.  Hershfield,  15  Mont  253,  39  Pac.  88;  Stokes  v.  Norwood 
(S.  C.)  22  S.  E.  417.    Cf.  Chapin  v.  Hill,  1  R.  I.  446. 

269  McCuUough  V.  Allen,  3  Yeates  (Pa.)  10;  Hamilton  v.  Buckwalter,  2 
Teates  (Pa.)  389;  Turner  v.  Scheiber,  89  Wis.  1,  61  N.  W.  280;  Lewis  v.  Smith, 
9  N.  Y.  502;  Church  v.  Bull,  2  Denio  (N.  Y.)  430;  Jackson  v.  Churchill,  7  Cow. 
(N.  Y.)  287;  Savage  v.  Bumham,  17  N.  Y.  561;  Nelson  v.  Brown,  144  N.  Y. 
884,  39  N.  E.  355;   Ferris  v.  Ferris  (Sup.)  30  N.  Y.  Supp.  982;   Gorriell  v.  Ham, 


110  ESTATES    AS    TO    QUANTITY Ll'.GAL    LIFE    ESTATES.  (Ch.    6 

it  was  intended  to  be  given  in  place  of  dower,  the  widow  may  take 

both."" 

Same — Statutory  Provision  in  Lieu  of  Bower. 

In  a  few  states  a  widow  must  elect  between  dower  and  an  intes- 
tate share  given  her  by  statute,"*  or  between  dower  and  home- 
stead."* 

IJsioj)jpel. 

A  widow  may  be  estopped  to  claim  dower  by  covenants  of  war- 
ranty,-" or  by  her  conduct,  as  in  inducing  a  purchaser  to  take  the 
land,  representing  it  free  from  dower."* 

2  Iowa,  551;  Cain  v.  Cain,  23  Iowa,  31;  Tooke  v.  Hardeman,  7  Ga.  20;  Helme 
V.  Strater,  52  N.  J.  Eq.  591,  30  Atl.  333;  Stewart  v.  Stewart,  31  N.  J.  Eq.  398; 
Bannister  v.  Bannister,  37  S.  C.  529,  16  S.  E.  612.  In  some  states  a  devise  is 
presumed  to  be  in  lieu  of  dower,  unless  tbe  contrary  appears.  1  Stim.  Am.  St. 
Law,  §  3244. 

270  stehlin  v.  Stehlin,  67  Hun,  110,  22  N.  Y.  Supp.  40;  Sanford  v.  Jackson,  10 
Paige  (N.  Y.)  266;  Brown  v.  Caldwell,  1  Speers,  Eq.  (S.  C.)  322;  Cunningham 
V.  Shannon,  4  Rich.  Eq.  (S.  C.)  135;  Tooke  v.  Hardeman,  7  Ga.  20;  Lord  v. 
Lord,  23  Conn.  327;  Corriell  v.  Ham,  2  Iowa,  552;  Tobias  v.  Ketchum.  32  N. 
Y.  319;  Lasher  v.  Lasher,  13  Barb.  (N.  Y.)  100;  In  re  Blaney's  Estate,  73  Iowa 
113,  34  N.  W.  768;  McGowen  v.  Baldwin,  46  Minn.  477,  49  N.  W.  251;  HaU  v. 
Smith,  103  Mo.  289,  15  S.  W.  621;  Sumerel  v.  Sumerel,  34  S.  C.  85,  12  S.  E. 
932;  Rivers  v.  Gooding  (S.  C.)  21  S.  E.  310;  Cai-per  v.  Crowl,  149  111.  465,  36 
N.  E.  lOiO;  Kelley  v.  BaU  (Ky.)  19  S.  W.  581;  Richards  v.  Richards,  90  Iowa, 
606,  58  N.  W.  926;  Bare  v.  Bare  (Iowa)  59  N.  W.  20;  Parker  v.  Hayden,  84 
Iowa,  493,  51  N.  W.  248;  Nelson  v.  Pomeroy,  64  Conn.  257,  29  Atl.  534;  Schorr 
V.  Etling,  124  Mo.  42,  27  S.  W.  395. 

271  1  Stim.  Am.  St.  Law,  §  3264.  Cf.  Andrews  v.  Bassett,  92  Mich.  449,  52 
N.  W.  743;  Payne  v.  Payne,  119  Mo.  174,  24  S.  W.  781;  Ford  v.  Ford,  88  Wis. 
122,  59  N,  W.  464;  Draper  v.  Morris,  137  Ind.  169,  36  N.  E.  714;  Wilcox  v.  Wil- 
cox, 89  Iowa,  388,  56  N.  W.  517. 

27  2Venable  v.  Railway  Co.  (Mo.)  19  S.  W.  45.  Of.  Whited  v.  Pearson,  90 
Iowa,  4SS,  58  N.  W.  32.    But  see  Godwin  v.  King,  31  Fla.  525,  13  South.  108. 

278  This  may  be  by  her  own  covenants,  2  Scrib.  Dower  (2d  Ed.)  261;  Elmen- 
dorf  V.  Lock  wood,  57  N.  Y.  322;  McKee  v.  Brown,  43  111.  130;  Rosenthal  v. 
Mayhugh,  33  Ohio  St.  155;  or  by  those  of  her  ancestor,  2  Scrib.  Dower  (2d  Ed.) 
264;  Torrey  v.  Minor,  1  Smedes  &  M.  Ch.  (Miss.)  489;  Russ  v.  Perry,  49  N.  H. 
547. 

27  4  Deshler  v.  Beery,  4  Dall.  (Pa.)  300;  Dongrey  v.  Topping,  4  Paige  (N.  Y.) 
94;  Smiley  v.  Wright,  2  Ohio,  506;  Sweaney  v.  Mallory,  62  Mo.  485;  Magee 
V.  Mellon,  23  Miss.  585;  Cf.  Heisen  v.  Heisen,  145  111.  658,  34  N.  B.  597; 
Boorum  v.  Txicker,  51  N.  J.  Eq.  135,  26  Atl.  456;   McCreary  v.  Lewis,  114  Mo. 


§    60;  DOWER HOW    DEFEATED.  Ill 

Statute  of  Limitations  and  Laches. 

Adverse  possession  before  the  husband's  death  has  no  effect  up- 
on the  dower  right. ^^^  In  several  states  it  is  provided  by  statute 
that  the  widow  must  bring  action  for  her  dower  within  a  certain 
time,  if  at  all.^'^'  In  some  states,  too,  the  general  statutes  of  limi- 
tation are  held  to  apply  to  dower,  though  it  is  not  expressly  in- 
cluded."^ In  other  states,  the  contrary  is  held."'  But  in  equity 
the  widow's  laches  will  bar  her  right.'*^* 

Waste. 
In  several  states  dower  is  forfeited  for  waste."'* 

582,  21  S.  W.  855;  Whiteaker  v.  Belt,  25  Or.  490,  36  Pac.  534.  But  see  Mc- 
Creery  v.  Davis  (S.  C.)  22  S.  E.  178. 

2T6  Durham  v.  Angier,  20  Me.  242;  Hart  v.  McCollum,  28  Ga.  478;  Moore  v. 
Frost,  3  N.  H.  126;  Taylor  v.  Lawrence,  148  111.  388,  36  N.  E.  74;  Boling  v. 
Clark,  83  Iowa,  481,  50  N.  W.  57. 

276  1  stim.  Am.  St.  Law,  §  3271.  And  see  Elyton  Land  Co.  v.  Denny,  96  Ala. 
336.  11  South.  218;  Hastings  v.  Mace,  157  Mass.  499,  32  N.  E.  668;  O'Gara  v. 
Neylon,  161  Mass.  140,  36  N.  E.  743. 

«TT  2  Scrib.  Dower  (2d  Ed.)  559;  Owen  v.  Peacock,  38  111.  33;  Whiting  v. 
NichoU,  46  111.  230;  Proctor  v.  Bigelow,  88  Mich.  282;  Care  v.  Keller,  77  Pa. 
St  487;  Tuttle  v.  Willson,  10  Ohio,  24;  Moody  v.  Harper,  38  Miss.  599;  Tor- 
rey  v.  Minor,  1  Smedes  &  M.  Ch.  (Miss.)  489;  Carmichael  v.  Carmichael,  5 
Humph.  (Tenn.)  96;  Kinsolving  v.  Pierce,  18  B.  Mon.  (Ky.)  782;  Null  v.  How- 
ell, 111  Mo.  273,  20  S.  W.  24;  Conover  v.  Wright,  6  N.  J.  Eq.  613;  Berrien  v. 
Conover,  16  N.  J.  Law,  107.  But  the  statute  is  held  not  to  begin  to  run  imtil 
there  is  a  denial  of  the  widow's  right.  Rice  v.  Nelson,  27  Iowa,  148.  And  see 
Hart  V.  Randolph,  142  111.  521,  32  N.  E.  517. 

278  Jones  V.  Powell,  6  Johns.  Ch.  (N.  Y.)  194;  Burt  v.  Sheep  Co.,  10  Mont 
571,  27  Pac.  399;  Campbell  v.  Murphy,  2  Jones,  Eq.  (N.  C.)  357;  Spencer  v. 
Weston,  1  Dev.  &  B.  (N.  C.)  213;  Ralls  v.  Hughes,  1  Dana  (Ky.)  407;  Chapman 
V.  Schroeder,  10  Ga.  321;  Spencer  v.  Weston,  1  Dev.  &  B.  (N.  C.)  213;  Chew 
V.  Farmers'  Bank,  2  Md.  Ch.  231. 

27  0  Tuttle  V.  Willson,  10  Ohio,  24;  Barksdale  v.  Garrett,  64  Ala.  277;  Ralls 
V.  Hughes,  1  Dana  (Ky.)  407;  Steiger's  Adm'r  v.  Hillen,  5  Gill  &  J.  (Md.)  121; 
Chew  V.  Farmers'  Bank,  9  Gill  (Md.)  361;   Kiddall  v.  Trimble,  1  Md.  Ch.  143. 

2  80  See  1  Stim.  Am.  St  Law,  §  3231  B,  C.  But  see  Willey  v.  Lara  way,  64 
Vt  559,  25  Atl.  438. 


112  ESTATES    A3   TO    QUANTITY LEGAL    LIFE    ESTATES.  (Oil.   6 


SAME— STATUTORY  CHANGES. 

61.  Dower,  as  it  existed  at  common  law,  has  been  abol- 
ished in  some  states,  and  in  others  largely  modi- 
fied by  statute. 

In  some  states,  dower  has  been  abolished  by  statute.  In  the 
others,  the  common-law  estate  has  been  modified  in  many  partic- 
ulars.^®^ These  statutory  changes  have  been  already  considered 
in  connection  with  the  subjects  to  which  they  apply. 

HOMESTEAD. 

82.  The  homestead  right  is,  in  most  states,  an  exemption 
to  a  debtor  of  a  home  free  from  liability  for  certain 
debts. 

Homestead  did  not  exist  at  common  law,  but  is  wholly  a  crea- 
tion of  statute,  and  is  of  comparatively  recent  origin. ^^^  The 
homestead  laws  of  the  several  states,  while  agreeing  somewhat  in 
their  general  nature  and  plan,  differ  very  much  in  wording  and 
detail.  Nor  is  there  much  harmony  in  the  interpretations  which 
have  been  given  by  the  various  courts  to  similar  provisions  of  the 
acts.  Therefore,  all  that  can  be  done  is  to  give  a  general  outline 
of  the  subject.  In  every  case  the  reader  must  consult  the  statutes 
and  decisions  of  his  own  state. 

2  81  1  stim.  Am.  St.  Law,  §  3202,  B;  1  Shars.  &  B.  Lead.  Cas.  Real  Prop. 
209;  Williams,  Real  Prop.  (17th  Ed.  Am.  note)  377;  1  Washb.  Real  Prop.  (5th 
Ed.)  190,  note  2.  In  three  states  the  husband  is  endowed,  curtesy  being 
abolished.  1  Stim.  Am.  St.  Law,  §  3202  D.  The  community  system  is  incom- 
patible with  dower  and  curtesy.  See  1  Stim.  Am.  St  Law,  §§  6433,  3401-3404 
For  the  constitutionality  of  laws  changing  the  dower  right,  see  Black,  Const 
Law,  431. 

>•>  Tbomp.  Homest.  &  ExemiK  r. 


68)  HOMESTEAD WHO    ENTITLED   TO    HOMESTEAD.  113 


SAME— WHO  ENTITLED  TO  HOMESTEAD. 

63.  The  homestead  exemption  can  in  most  states  be 
claimed  only  by  the  head  of  a  family,  but  in  a  few 
states  any  resident  of  the  state  is  entitled  to  the 
exemption. 

Most  of  the  homestead  acts  provide  for  the  exemption  to  one  who 
Is  the  head  of  a  family,  or  use  words  of  equivalent  meaning.'^" 
But  in  a  few  states  all  residents  of  the  state  are  given  the  privilege, 
whether  the  head  of  a  family  or  not.^'^*  The  best  test  to  deter- 
mine whether  one  claiming  a  homestead  is  the  head  of  a  family 
seems  to  be  the  existence  of  a  moral  duty  to  support  dependent 
persons  living  with  hinL^^"^  A  husband  and  wife  are  such  a  fam- 
ily, though  they  have  no  children.^^*  When  a  husband  owning  a 
homestead  dies,  the  right  survives  to  the  widow  for  her  life,^" 

2  83  Thomp.  Homest  &  Exemp.  39.  Alienage  does  not  exclude  one  from  the 
benefit  of  homestead  exemptions.  Cobbs  v.  Coleman,  14  Tex.  594;  People  v. 
McCl£^y,  2  Neb.  7;  Dawley  v.  Ayers,  23  Cal.  108;  Sproul  v.  McCoy,  26  Ohio  St. 
577. 

264  Thomp.  Homest  &  Exemp.  52;  Myers  v.  Ford,  22  Wis.  134;  1  Minn.  St. 
at  Large  1873,  p.  630,  §  165;  Const.  Ark.  1SG8,  art.  12,  §  3;  Greenwood  v.  Mad- 
dox,  27  Ark.  049;  Hesnard  v.  Plunkett  (S.  D.)  60  N.  W.  159.  And  see  Bank 
of  Versailles  v.  Guthrey,  127  Mo.  189,  29  S.  W.  1004. 

28B  Thomp.  Homest.  &  Exemp.  46;  Connaughton  v.  Sands,  32  Wis.  387; 
Wade  V.  Jones,  20  Mo.  75;  Blackwell  v.  Broughton,  56  Ga.  390;  McMurray  v. 
Shuck,  6  Bush  (Ky.)  Ill;  MuUins  v.  Looke.  8  Tex.  Civ.  App.  138,  27  S.  W.  926. 
But  see  Powers  v.  Sample,  72  Miss.  187,  16  South.  293.  In  some  cases  a  legal 
duty  to  support  has  been  made  the  test.  Whalen  v.  Cadman,  11  Iowa,  226; 
Marsh  v.  Lazenby,  41  Ga.  153;  Sanderlin  v.  Sanderlin's  Adm'r,  1  Swan  (Tenn.) 
441.  Instances  are:  A  single  man  supporting  his  mother  and  dependent  broth- 
ers and  sisters.  Marsh  v.  Lazenby,  41  Ga.  153;  or  dependent  minor  brothers 
and  sisters,  Greenwood  v.  Maddox,  27  Ark.  649;  McMurray  v.  Shuck,  6  Bush 
(Ky.)  Ill;  or  widowed  sister,  with  her  dependent  children,  Wade  v.  Jones,  20 
Mo.  75;  a  widower  supporting  his  widowed  daughter  and  her  children.  Black- 
well  v.  Broughton,  56  Ga.  390;  or  a  grown-up  daughter,  Cox  v.  Stafford.  14 
How.  Prac.  (N.  Y.)  519;  single  woman  supporting  her  illegitimate  child,  Ellis 
T.  White,  47  Cal.  73. 
2S8  Kltchell  v.  Burgwin,  21  111.  40;  Yv'ilson  v.  Cochran,  31  Tex.  680. 
2  87  Thomp.  Homest  &  Exemp.  454;  Fleetwood  v.  Lord,  87  Ga.  592,  13  S.  E. 
574;   Fore  v.  Fore,  2  N.  D.  260,  50  N.  W.  712.    But  see  Go  wan  v.  Fountain,  50 

BEAL  PROP.— 8 


114  ESTATliS    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.    6 

though  in  some  states  she  loses  the  homestead  by  a  subsequent 
marriage.^"  On  the  other  hand,  where  the  wife  was  the  owner  of 
the  homestead,  the  surviving  husband  is  in  some  states  entitled  to 
a  continuation  of  the  exemption,  although  there  are  no  minor  chil- 
dren."*' And  a  husband  does  not  lose  his  homestead  when  his 
wife  withdraws  from  the  family  under  a  decree  of  divorce.""  But 
in  several  states  it  is  held  that  a  widow  who  is  a  nonresident  is 
not  entitled  to  the  homestead."^  Children,  during  the  life  of  the 
parent  who  owns  the  homestead  property,  have  no  rights  against 
such  parent.*"  But,  against  a  surviving  parent  who  does  not  own 
the  property,  they  have,*'^  and  in  most  states  the  minor  children 

Minn.  2G4,  52  N.  W.  S62;  White's  Adm'r  v.  White,  63  Vt.  577,  22  Atl.  602.  But 
not  In  Georgia,  unless  there  are  minor  children.  Kldd  v.  Lesler,  46  Ga.  231. 
Some  cases  hold  that  the  widow  must  elect  between  her  dower  and  homestead, 
Butteiiield  v.  Wicks,  44  Iowa,  310;  or  between  her  distributive  share  and 
homestead.  Egbert  v.  Egbert,  85  Iowa,  525,  52  N.  W.  478.  And  she  may  be 
compelled  to  choose  between  homestead  and  a  devise,  in  a  will  which  clearly 
requires  such  election.  Meech  v.  Meech,  37  Vt.  414.  And  see  Cowdrey  v.  Hitch- 
cock, 103  111.  262. 

2  8S  Dei  V.  Habel,  41  Mich.  88,  1  N.  W.  964.  And  see  Craddock  v.  Edwards, 
81  Tex.  609,  17  S.  W.  228.    Conti-a,  Fore  v.  Fore,  2  N.  D,  260,  50  N.  W.  712. 

2  88  In  re  Lamb's  Estate,  95  Cal.  397,  30  Pac.  508;  Stults  v.  Sale,  92  Ky.  5, 
17  S.  W.  148;   Roberts  v.  Greer  (Nev.)  40  Pac.  6. 

880  Doyle  v.  Cobum,  6  Allen  (Mass.)  71;  HaU  v.  Fields,  81  Tex.  553, 17  S.  W. 
82.  But  see  Arp  v.  Jacobs,  3  Wyo.  489,  27  Pac.  800.  See,  however.  Cooper  v. 
Cooper,  24  Ohio  St  489.  Where  the  wife  withdraws  from  the  family,  she 
loses  her  homestead  right,  if  her  withdrawal  was  not  justified,  Trawick  v, 
Harris,  8  Tex.  312;  Cockrell  v.  Curtis,  83  Tex.  105,  18  S.  W.  436;  but  not  when 
the  husband's  conduct  has  forced  her  to  withdraw,  Meader  v.  Place,  43  N.  H. 
307;  Atkinson  v.  Atkinson,  40  N.  H.  249;  Curtis  v.  Cockrell  (Tex.  Civ.  App.) 
28  S.  W.  129.  A  divorced  wife  cannot  claim  her  "widow's  exemption."  Dob- 
son's  Adm'r  v.  Butler's  Adm'r,  17  Mo.  87.  But  see  Alexander  v.  Alexander.  52 
111.  App.  195. 

281  Succession  of  Norton,  18  La.  Ann.  30;  Allen  v.  Manasse,  4  Ala.  554; 
Mej-er  v.  Clau.s,  15  Tex.  510;  Black  v.  Singley,  91  Mich.  50,  51  N.  W.  704. 

2  92  Thomp.  Homest  &  Exemp.  470;  Bateman  v.  Pool,  84  Tex.  405,  19  S.  W. 
552. 

«88  Thomp.  Homest  &  Exemp.  475;  Miller  v.  Marckle,  27  111.  405;  Williams 
V.  Whitaker,  110  N.  C.  393,  14  S.  E.  924;  Hoppe  v.  Hoppe,  104  Cal.  94,  37  Pac, 
894. 


§    64)  HOMESTEAD DURATION    OF    EXEMPTION.  115 

are  entitled,  after  the  death  of  both  parents,  to  the  homestead  dur- 
ing their  minority.^®* 


SAME— DURATION  OF  EXEMPTION. 

64.  The  homestead  right  is  an  exemption: 

(a)  To  the  owner  for  life. 

(b)  To  the  surviving  spouse  for  life,  in  most  states. 

(c)  To  the  children  during  their  minority,  in  some  states. 

The  homestead  interest  or  estate  ^^^  is  an  exemption,  on  grounds 
of  public  policy,  of  a  home  to  a  debtor  and  his  family."*  The  ex- 
emption continues  in  general  for  the  life  of  the  owner  and  of  the 
surviving  spouse,  and  until  the  minor  children,  if  any,  reach  ma- 
jority; 2"  that  is,  during  a  life  or  lives,  and  the  interest  is  therefore 
most  closely  allied  to  legal  life  estates,  and  possesses  many  of  the 
incidents  of  such  estates.^^* 

294  Thomp.  Homest.  &  Exemp.  47G;  Hoppe  v.  Hoppe,  104  Cal.  94,  37  Pac.  894; 
Sparkman  v.  Roberts  (Ark.)  31  S.  W.  742;  Fields  v.  Austin  (Tex.  Civ.  App.)  30 
S.  W.  386;  HaU  v.  Fields,  81  Tex.  553,  17  S.  W.  82;  Tate  v.  Goff,  89  Ga.  184, 
15  S.  E.  30;  Vornberg  v.  Ewens,  88  Ga.  237,  14  S.  E.  562;  Lewis  v.  Liclity,  8 
Wash.  St.  213,  28  Pac.  356.  But  see  Haynes  v.  Schaefer,  96  Ga.  743,  22  S.  E. 
327;   Moore  v.  Peacock,  94  Ga.  523,  21  S.  E.  144. 

2  95  In  some  states  the  homestead  is  not  treated  as  an  estate.  McDonald  v. 
Crandall,  43  111.  231;  Black  v,  Curran,  14  Wall.  463;  Atkinson  v.  Atkinson,  37 
N.  H.  434;  Robinson  v.  Baker,  47  Mich.  619,  11  N.  W.  410;  Browning  v.  Har- 
ris, 99  111.  456.    But  see  Helm  v.  Helm,  11  Kan.  21. 

296  Capek  V.  Kropik,  129  111.  509,  21  N.  E.  836. 

297  See  post,  p.  382. 

298  Kerley  v.  Kerley,  13  Allen  (Mass.)  286;  Hunter's  Adm'r  v.  Law,  68  Ala. 
365;  Jones  v.  Gilbert,  135  111.  27,  25  N.  E.  566;  Wilson  v.  Proctor,  28  Minn. 
13,  8  N.  W.  830.  It  is  also  an  estate  upon  condition  (see  post,  p.  169),  namely, 
that  it  continue  to  be  occupied  as  a  homestead.  Locke  v.  Rowell,  47  N.  H.  46. 
Homestead  also  under  some  statutes  resembles  the  commorv-law  tenancy  in  en- 
tirety, since  the  estate  goes  to  the  survivor,  and  both  husband  and  wife  must 
join  in  a  conveyance.    See  post,  p.  337. 


lift  ESTATES    AS   TO    QUANTITY LEGAL    LIKE    liiTATES.  (Ch.  6 


SAME— IN  WHAT  ESTATES. 

65.  Any  estate  in  possession,  legal  or  equitable,  will  sup- 
port a  homestead. 
EXCEPTION  —  In    some    states    homestead    cannot    be 
claimed  in  joint  estates. 

The  iutrrest  which  the  debtor  has  in  the  land  which  he  claims 
as  a  homestead  can,  it  seems,  make  no  difference  to  his  credit- 
ors.^^"  Accordingly,  an  equitable  estate,  such  as  an  equity  of 
redemption," °<»  or  a  contract  to  purchase,""^  will  support  a  claim 
of  homestead.^'*'*  So,  also,  will  a  life  estate,«°»  or  a  leasehold.""* 
As  to  estates  in  common,  the  cases  are  conflicting.""''  Homestead 
rights  in  partnership  realty  are  denied  in  most  states.""*     So  a 

298  Thouip.  Homest.  &  Exemp.  144. 

800  Cheatham  v.  Jones,  t>8  N.  C.  153;   Doane  v.  Doane,  46  Vt  485. 

301  McKee  v.  Wilcox,  11  Mich.  358;  Fyffe  v.  Beers,  18  Iowa,  11;  Bartholo- 
mew V.  West,  2  Dill.  203,  Fed.  Cas.  No.  1.071. 

802  Wilder  v.  Haughey,  21  Minn.  102;  McKee  v.  Wilcox,  11  Mich.  358; 
Blue  V.  Blue,  38  111.  9;  Allen  v.  Hawley,  6G  111.  1G4;  Bartholomew  v.  West,  2 
Dill.  2«J0,  Fed.  Cas.  No.  1,071;  McCabe  v.  Mazzuchelli,  13  Wis.  478;  Orr  v. 
Shraft,  22  Mich.  2G0;  Alexander  v.  Jackson,  92  Gal.  514,  28  Pac.  503.  Contra, 
Garaly  v.  Du  Bose,  5  S.  C.  493. 

808Thomp.  Homest.  &  Exemp.  §  150;  Deere  v.  Chapman,  25  111.  610;  Potts 
V.  Davenport,  79  111.  455.  But  that  the  widow  cannot  have  a  homestead  in 
such  estate,  see  Ogden  v.  Ogden,  60  Ark.  70,  28  S.  W.  796. 

804  Thomp.  Homest  &  Exemp.  §  152;  Pelan  v.  De  Bevard,  13  Iowa,  53; 
Conklin  v.  Foster,  57  111.  104;  Johnson  v.  Richardson,  33  Miss.  462;  Maatta 
V.  Kippola,  102  Mich.  116,  60  N.  W.  300;  In  re  Emerson's  Homestead,  58  Minn. 
450,  60  N.  W.  23.  But  a  tenancy  at  will  is  not  sufficient.  Berry  v.  Dobson,  68 
Miss.  483,  10  South.  45.    And  see  Colwell  v.  Carper,  15  Ohio  St  279. 

80 B  Thomp.  Homest.  &  Exemp.  §  156.  For  cases  holding  the  affirmative, 
see  McClary  v.  Bixby,  36  Vt  254;  Horn  v.  Tufts,  39  N.  H.  478;  Hewitt  v. 
Rankin,  41  Iowa,  35;  Tarrant  v.  Swain,  15  Kan.  146;  Smith  v.  Deschaumes, 
37  Tex.  429;  Williams  v,  Wethered,  Id.  130.    See,  also.  Greenwood  v.  Maddox, 

27  Ark.  648.  Contra,  Thurston  v.  Maddocks,  6  Allen  (Mass.)  427;  Wolf  v. 
Flelschacker,  5  Cal.  244;  Ward  v.  Huhn,  16  Minn.  159  (Gil.  142);  West  v. 
Ward,  26  Wis.  579;   Amphlett  v.  Hibbard,  29  Mich.  298;   Ventress  v.  Collins, 

28  La.  Ann.  783;  In  re  Carriger's  Estate,  107  Cal.  618,  40  Pac.  1032.  And  see 
note  to  12  Lawy.  Rep.  Ann.  519. 

•o«  Thomp.  Homest  &  Exemp.  §  175;    Kingsley  v.  Kingsley,  39  Cal.  605; 


§§    66-67)  HOMESTEAD AMOUNT    OF   EXEMPTION.  117 

widow  cannot  have  a  homestead  in  lands  to  which  the  husband  was 
entitled  in  remainder.^"^  Title  in  the  wife  will  give  a  homestead, 
though  the  husband  be  living;  ■"*«  but  each  cannot  claim  a  home- 
stead.«"»» 

SAME— AMOUNT  OP  EXEMPTION. 

66.  The  homestead  statutes  limit  the  amount  of  exemption 

either: 

(a)  By  the  number  of  acres ; 

(b)  By  the  value  of  the  premises ;  or 

(c)  By  both. 

67.  The  limitation  is  different  in  many  states  for: 
(a)  Urban  homesteads,  and 

(b;  Rural  homesteads. 

In  al)  states  the  amount  of  which  the  homestead  may  consist  is 
limited,  either  as  to  the  number  of  acres,  or  the  value  of  the  prem- 
ises, or  both.  Under  limitations  according  to  value,  the  value  of 
improvements  is  added  to  the  bare  value  of  the  land  in  estimating 
the  exemption. ^^°  The  amount  of  the  homestead  exemption  de- 
pends, under  most  statutes,  on  whether  the  homestead  is  urban  or 
rural, — the  former  meaning  a  home  in  a  town  or  city,  and  the  lat- 
ter a  home  in  the  country,  with  land  used  in  agricultural  pur- 
euits.'"'^     But  the  fact  that  the  land  is  within  the  corporate  limits 

Rhodes  v.  Williams,  12  Nev.  20;  Drake  v.  Moore,  66  Iowa,  58,  23  N.  W.  263; 
Hoyt  V.  Hoyt,  69  Iowa,  174,  28  N.  W.  500;  Chalfant  v.  Grant,  3  Lea  (Tenn.) 
118.  Contra,  Hewitt  v.  Rankin,  41  Iowa,  35;  West  v.  Ward,  26  Wis.  579;  Mc- 
Millan V.  Parker,  109  N.  C.  252,  13  S.  E.  764. 

8  07  Howell  V.  Jones.  91  Tenn.  402,  19  S.  W.  757.  But  see  Stern  v.  Lee, 
115  N.  C.  426,  20  S.  E.  736. 

sosThomp.  Homest.  &  Exemp.  §  184;  Orr  v.  Shraft,  22  Mich.  260;  Crane 
V.  Waggoner,  33  Ind.  83;  Tourville  v.  Pierson,  39  111.  440;  Partee  v.  Stew- 
art, 50  Miss.  717;  Murray  v.  Sells,  53  Ga.  257;  Herdman  v.  Cooper,  39  111. 
App.  330. 

8  09  Tourville  v.  Pierson,  39  111.  447;  Gambette  v.  Brock,  41  Cal.  84;  Mc- 
Adoo,  J.,  in  Holliman  v.  Smith,  39  Tex.  362. 

810  Thomp.  Homest,  &  Exemp.  100;  Williams  v.  Jenkins,  25  Tex.  306;  Van- 
story  V.  Thornton,  110  N.  C.  10,  14  S.  E.  637.  Contra,  Swayne  v.  Chase, 
(Tex.  Sup.)  30  S.  W.  1049. 

«ii  The  husband  cannot,  without  the  wife's  consent,  change  a  rural  into 


118  ESTATES    A3    TO    QUANTITY LEGAL    LIFE    ESTATE^.  (Ch.   6 

of  a  town  or  city  does  not  make  it  an  urban  homestead,  if  it  is  used 
for  agricultural  purposes.'''^  Some  cases  hold  that  the  homestead 
may  consist  of  parcels  of  land  not  contiguous," '»  but  this  is  denied 
In  others.'^* 

SAME— HOW  ACQUIRED. 

68.  The  homestead  exemption  is  acquired  by  occupancy 
of  the  premises  as  a  home.  In  some  states  there 
must  also  be  a  recorded  notice  that  the  premises 
are  claimed  as  a  homestead. 

Occupancy. 

In  most  of  the  states,  the  right  to  claim  land  exempt  as  a  home- 
stead is  acquired  by  occupancy  of  the  premises  as  a  home.'"  To 
create  a  homestead  by  occupancy,  the  occupancy  must  be  actual,'" 

an  urban  homestead  by  dividing  It  into  town  lots.  Bassett  v.  Messner,  30 
Tex.  604.     Cf.  Allen  v.  Whitaker  (Tex.  Sup.)  18  S.  W.  160. 

812  Taylor  v.  Boulware,  17  Tex.  74;  Frost  v.  Rainbow,  85  Iowa,  289,  52  N. 
W.  19S.     But  see  Heidel  v.  Benedict    (Minn.)  63  N.  W.  490. 

813  Mayho  v.  Cotton,  69  N.  C.  289;  Martin  v.  Hughes,  67  N.  C.  293;  Wil- 
liams V.  Hall,  33  Tex.  212;  Perkins  v.  Quigley,  62  Mo.  498;  West  River 
Bank  v.  Gale,  42  Vt.  27;  Shubert  v.  Winston,  95  Ala.  514,  11  South.  200; 
Webb  V.  Ilayner,  49  Fed.  601,  605;  Grlswold  v.  Huffaker,  47  Kan.  690,  28 
Pac.  G90. 

.814  Reynolds  v.  Hull,  36  Iowa,  394;  Bunker  v.  Locke,  15  Wis.  035;  Walters 
v.  People,  18  111.  194;  True  v.  Morrill,  28  Vt.  672;  Adams  v.  Jenkins,  16 
Gray  (Mass.)  146;  Linn  Co.  Bank  v.  Hopkins,  47  Kan.  580,  28  Pac.  606; 
McCrosky  v.  Walker,  55  Ark.  303,  18  S.  W.  109;  Williams  v.  Willis,  84 
Tex.  398,  19  S.  W.  683;  Allen  v.  Whitaker  (Tex.  Sup.)  18  S.  W.  160. 

8i6Thomp.  Homest.  &  Exemp.  §  198. 

816  Thouip.  Homest.  &  Exemp.  199;  Gregg  v.  Bostwick,  33  Cal.  220;  Kitch- 
ell  v.  Burgwin,  21  111.  40;  Walters  v.  People,  Id.  178;  Tourvllle  v.  Pierson, 
39  111.  446;  True  v.  Morrill,  28  Vt.  672;  McMonegle  v.  Wilson,  103  Mich. 
204,  61  N.  W.  495;  Cahill  v.  Wilson,  62  111.  137;  Campbell  v.  Ayres,  18 
Iowa,  252;  Coolidge  v.  Wells,  20  Mich.  79;  Tillotson  v.  Millard,  7  Minn. 
513  (GU.  419);  Petty  v.  Barrett,  37  Tex.  84;  Campbell  v.  Adair,  45  Miss. 
170.  For  cases  where  the  facts  did  not  show  sufficient  occupancy,  see  Ev- 
ans V.  Caiman,  92  Mich.  427,  52  N.  W.  787;  Tromans  v.  Mahlman,  92  Cal. 
1,  27  Pac.  1094,  and  28  Pac.  579;  Sharp  v.  Johnston  (Tex.  Sup.)  19  S.  W.  259. 
The  requirement  of  actual  occupancy  is  relaxed  In  the  case  of  a  widow 
or  minor  children  surviving  the  owner.     TItman  v.  Moore,  43  111.  169;  Locke 


§    68)  HOMESTEAD HOW    ACQUIRED.  119 

and  in  many  states  must  exist  at  the  time  the  adverse  right  against 
which  the  exemption  is  claimed  accnies.^^^  Dedication  by  occu- 
pancy is  based  on  the  theory  that  the  use  of  the  premises  as  a 
home  is  notice  to  the  world  of  the  existence  of  the  exemption.^ ^* 
Therefore  the  occupancy  is  required  to  be  permanent,^"  and  by  the 
family  as  a  home.^*°  It  must  be  personal,  and  not  by  a  tenant.^^^ 
But  it  is  not  required  by  the  statutes  that  the  occupancy  be  con- 
tinued any  stated  length  of  time  before  the  exemption  is  acquired. 
So,  after  premises  have  acquired  a  homestead  character,  that  char- 
acter is  not  lost  by  temporary  interruptions  in  the  occupancy."' 

Recorded  Notice. 

In  some  states  occupancy  alone  is  not  sufficient  to  create  a  home- 
stead exemption.  It  is  required,  in  addition,  that  there  be  a  no- 
tice recorded  that  the  premises  are  claimed  as  a  homestead,  or  the 
word  "homestead"  must  be  entered  in  the  margin  of  the  record  of 
the  title  to  the  premises.'"  It  is,  of  course,  necessary  that  the 
homestead  continue  to  be  occupied  as  such  after  the  recording  of 
the  notice,  or  the  exemption  will  be  lost.''* 

V.  Rowell,  47  N,  H.  46;  Phipps  v.  Acton,  12  Bush  (Ky.)  375;  Brettun  v. 
Fox,  100  Mass.  234;  Wright  v.  Dunning,  46  111.  271;  Booth  v.  Goodwin,  29 
Ark.  633;  Johnston  v.  Turner,  29  Ark.  280. 

81T  Villa  V.  Pico,  41  Cal.  469;  Lee  v.  Miller,  11  Allen  (Mass.)  37;  Titman 
V.  Moore,  43  111.  174;  McCormick  v.  Wilcox,  25  111.  274;  Reinback  v.  Wal- 
ter, 27  111.  393. 

818  Christy  v.  Dyer,  14  Iowa,  438;  Williams  v.  Dorris,  31  Ark.  466;  Broome 
V.  Davis,  87  Ga.  584,  13  S.  E.  749.  See,  also,  Grosholz  v.  Newman,  21  Wall. 
481. 

819  Lee  V.  Miller,  11  Allen  (Mass.)  37. 

8  20  Spaulding  v.  Crane,  46  Vt.  298;  McCIary  v.  Blxby,  36  Vt.  254;  Dyson 
V.  Sheley,  11  Mich.  527;  Moerlein  v.  Investment  Co.  (Tex.  Civ.  App.)  29  S. 
W.  162;    Bente  v.  Lange,  Id.  813. 

821  Holtt  V.  Webb,  36  N.  H.  158;  True  v.  Morrill,  28  Vt.  672.  See,  also, 
Kaster  v.  McWlUiams,  41  Ala.  302;    Elmore  v.  Elmore,  10  Cal.  224. 

822  Kltchell  v.  Burgwin,  21  111.  40;  Walters  v.  People,  Id.  178;  Potts  v. 
Davenport,  79  111.  455;  Herrick  v.  Graves,  16  Wis.  157;  Jarvals  v.  Moe,  33 
Wis.  440;   Wetz  v.  Beard,  12  Ohio  St.  431;    Bunker  v.  Paquette,  37  Mich.  79. 

8  28  Drake  v.  Root,  2  Colo.  685;  Wright  v.  Westheimer,  2  Idaho,  962,  28 
Pac.  430. 

82*  Gregg  V.  Bostwlck,  83  Cal.  220;  Cole  t.  Gill,  14  Iowa,  527;  Alley  v.  Bay, 
9  Iowa,  509. 


120  ESTATES    A9    TO    QITANTITY LEGAL    LIFE    ESTATES.  (Ctl.  6 

69.  SELECTION— The  homestead  may  be  selected  by  the 

one  claiming  the   exemption,  or  set  off  for  him  by 
order  of  court. 

When  the  premises  occupied  as  a  home  by  a  debtor  exceed  in 
area  or  value  the  exemption  allowed  by  statute,  the  debtor  may 
select  the  part  which  he  will  claim  as  his  homestead.  He  may  do 
so  after  an  execution  has  been  issued  against  him,  provided  he 
has  uut  made  a  selection  previously. ^^"^  If  the  debtor  fails  to  make 
a  selection,  the  court  will  direct  the  sheriff  or  a  board  of  ap- 
praisers to  make  one  for  him.^'^*  In  case  division  of  the  premises 
is  impossible  or  inexpedient,^^^  in  some  states,  the  premises  may 
be  sold,  and  the  amount  which  is  exempt  paid  over  to  the  debtor.'^' 
For  the  details  of  the  procedure,  the  reader  must  consult  the  local 
statutes. 

SAME— HOW  LOST. 

70.  The  homestead  right  may  be  lost: 

(a)  By  abandonment. 

(b)  By  waiver. 

(c)  By  alienation  of  the  premises,  in  some  states. 

»2  8  Mackey  v.  Wallace,  26  Tex.  52G;  Davenport  v.  Alston,  14  Ga.  271;  Kent 
V.  Agard,  22  Wis.  145.  Cf.  Palmer  v.  Hawes,  80  Wis.  474,  50  N.  W.  341.  And 
see  Thomp.  Homest,  &  Exemp.  533.  For  the  debtor's  riglit  to  select  in  states 
where  there  is  a  limitation  on  area,  but  not  on  value,  see  Thomp.  Homest.  & 
Exemp.  §  533;  Tumlinson  v.  Swinney,  22  Ark.  400;  Houston  &  G.  N.  R.  Co. 
V.  Winter,  44  Tex.  5'JT;    How  v.  Bank  (Minn.)  63  N.  W.  632. 

•  26  Holden  v.  Pinney,  6  Cal.  234;  Fogg  v.  Fogg,  40  N.  H.  282;  Gary  v. 
I?:astabrook,  6  Cal.  457;  Myers  v.  Ford,  22  Wis.  139;  Hartwell  v.  McDonald, 
GO  111.  203;  Lute  v.  Reilly,  65  N.  C.  21;  Anthony  v.  Rice,  110  Mo.  223,  19  S.  W. 
423.  And  see  Pinkerton  v.  Tumlin,  22  Ga,  105.  For  procedure  In  such  cases, 
see  Dillman  v.  Bank,  139  111.  209,  28  N.  E.  946;  Ducote  v.  Rachal,  44  La.  Ann. 
580.  10  South.  933. 

»2T  Where  the  lower  floor  of  a  building  occupied  by  a  debtor  as  his  home 
Is  rented  for  a  store,  partition  may  be  made  horizontally,  and  the  part  used 
for  the  store  sold  on  execution.  Amphlett  v.  Hlbbard,  29  Mich.  298;  Rhodes 
V.  McCormick,  4  Iowa,  368;  Mayfield  v.  Maasden,  59  Iowa,  517,  13  N.  W. 
652.     But  see  Wright  v.  Dltzler,  54  Iowa,  620,  7  N.  W.  98. 

^2«  Dearlng  v.  Thomas,  25  Ga.  223;  Miller's  Appeal,  16  Pa.  St.  300;  Dod- 
son's  Appeal,  25  Pa,  St,  232;   Chaplin  v.  Sawyer,  35  Vt  286. 


§   70)  HOMESTEAD HOW    LOST.  121 

Ahwndcmment, 

Like  acquisition  by  occupancy,  loss  by  abandonment  is  In  all 
cases  a  question  of  fact,^^"  and,  in  determining  this,  intention  to  re- 
turn "**  and  duration  of  absence  are  material  points.'"^  Leasing 
the  homestead  to  a  tenant  is  not  conclusive  evidence  of  an  aban- 
donment,*^^ but  acquisition  of  another  homestead  is.**'  Some 
statutes  provide  that  only  certain  named  acts  or  a  written  ac- 

828  Thomp.  Homest  &  Exemp.  §  218;  Feldes  v.  Duncan,  30  111.  App.  4G9; 
Loveless  v.  Thomas,  152  III.  479,  38  N.  E.  907;  Stewart  v.  Brand,  23  Iowa, 
477;  Orman  v.  Orman,  26  Iowa,  301;  Potts  v.  Davenport,  79  111.  459;  Brennan 
V.  Wallace,  25  Cal.  108;  Shepherd  v.  Casslday,  20  Tex.  24;  Bradford  v.  Trust 
Co.,  47  Kan.  587,  28  Pac.  702;  Robinson  v.  Swearingen,  55  Ark.  55,  17  S.  W. 
305;   Metcalf  v.  Smith  (Ala.)  17  South.  537;   Blackman  v.  Hardware  Co.  (Ala.) 

17  South.  629.  The  removal  must  be  voluntary,  to  constitute  abandonment. 
So  leaving  the  home  for  fear  of  Indian  hostilities  would  not  authorize  the  hus- 
band, before  returning,  to  execute  a  mortgage  without  the  wife  Joining.  Moss 
V.  Warner,  10  Cal.  296.  Mere  intention  to  abandon  does  not  terminate  the 
exemption.    Dawley  v.  Ayers,  123  Cal.  108. 

3  80  Moore  v.  Smead,  89  Wis.  558,  62  N.  W.  426;  McMillan  v.  Warner,  38 
Tex.  410;  Shepherd  v.  Cassiday,  20  Tex,  24;  Gouhenant  v.  Cockrell,  Id.  97; 
Potts  V.  ravenport,  79  III.  455;  Lazell  v.  Lazell,  8  Allen  (Mass.)  575;  Kitchell 
V.  BurgwiD,  21  111.  40;  Buck  v.  Conlogue,  49  111.  391;  Titman  v.  Moore,  43 
111.  169;  Cory  v.  Schuster,  44  Neb.  269,  62  N.  W.  470;  Cooper  v.  Basham  (Tex. 
Sup.)  19  S.  W.  704;  Campbell  v.  Potter  (Ky.)  29  S.  W.  139;  D.  M.  Osborne  & 
Co.  V.  Schoonmaker,  47  Kan   667,  28  Pac.  711;    Gregory  v.  Gates,  92  Ky.  532, 

18  S.  W.  231. 

331  Fyffe  V.  Bsers,  IS  Iowa,  7;  Dunton  v.  Woodbury,  24  Iowa,  74;  Cabeen 
r.  Mulliran,  37  111.  230;  William  Deering  &  Co.  v.  Beard,  48  Kan.  16,  28  Pac. 
981. 

832  Herrlck  v.  Graves,  16  Wis.  163;  Austin  v.  Stanley,  46  N.  H.  51;  Camp- 
bell V.  Adair,  45  Miss.  170;   Wetz  v.  Beard,  12  Ohio  St.  431;    Pardo  v,  Bittorf, 

48  Mich.  275,  12  N.  W.  164;   Wiggins  v.  Chance,  54  111.  175;   Buck  v.  Conlogue, 

49  111.  391;  Myers  v.  Ford,  22  Wis.  139;  Eckman  v.  Scott,  34  Neb.  817,  52  N. 
W.  822.  But  see  In  re  Phelan's  Estate,  16  Wis.  76;  Fisher  v.  Cornell,  70  111, 
216;  Davis  v.  Andrews,  30  Vt,  678;  Warren  v.  Peterson,  32  Neb.  727,  49  N. 
W.  703;  Wynne  v.  Hudson,  66  Tex.  1,  17  S.  W.  110;  Malone  v.  Komrumpf, 
84  Tex.  454,  19  S.   W.  607. 

83  8  Woodbury  v.  Luddy,  14  Allen  CNIass.)  1;  Cahlll  v.  Wilson,  62  111.  137; 
Carr  v.  Rising,  Id.  14;  Dniry  v,  Bachelder,  11  Gray  (Mass.)  214;  Blackburn 
V.  Ti-affic  Co..  90  Wis.  362,  63  N.  W.  289;  Wood  v.  Hawkins,  60  Ark,  262,  29 
S.  W.  892.  Cf.  Davis  v.  Kelley,  14  Iowa,  523;  Brewer  v.  Wall.  23  Tex.  585; 
Titman  v.  Moore,  43  111.  1G9.  But  see  Ross  v.  Porter,  72  Miss.  361.  16  South. 
906;    McMillan  v.  Warner,  38  Tex.  4ia 


122  ESTATES    AS    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   6 

knowledgment  shall  be  evidence  of  abandonment."*  No  premises 
can  be  a  homestead  unless  they  are  used  as  such.^"  A  use  of  part 
of  the  premises  for  business  purposes  does  not  take  away  the  ex- 
emption."" But  in  most  states  it  is  held  that  separate  buildings 
rented  to  tenants  will  not  be  exempt,  though  they  are  on  the  home- 
stead lot.»" 

Wawer. 

The  homestead  may  be  made  liable  by  an  express  waiver  of  the 
exemption  at  the  time  a  debt  is  created,  the  waiver  being  made 
by  the  persons  competent  to  sell  the  homestead."'  The  wife  must, 
however,  join  in  the  waiver  to  make  it  effectual."* 

Alienation, 

A  fraudulent  conveyance  of  the  homestead  set  aside  by  the  hus- 
band's creditors  does  not  estop  the  debtor  or  his  wife,  though  she 

884  Dulanty  v.  Pynchon,  6  Allen  (Mass.)  510;  Doyle  v.  Coburn,  Id.  71: 
Locke  V.  Rowell,  47  N.  H.  4G;  Cross  v.  Everts,  28  Tex.  533;  Jarvals  v.  Moe. 
38  Wis.  445;    Faivre  v.  Daley,  93  Cal.  6G4,  29  Pac.  25G. 

886  Hoitt  V.  Webb,  36  N.  H.  158;  Stanley  v.  Greenwood,  24  Tex.  224;  Phllleo 
V.  Smalley,  23  Tex.  499;  Kelly  v.  Baker,  10  Minn.  154  (Gil.  124);  Tillotson  v. 
Millard,  7  Minn,  513  (Gil.  419);  Grosholz  v.  Newman,  21  Wall.  4SL  A 
man  can  have  only  one  homestead.  Wright  v.  Dunning,  46  IlL  271.  In 
Texas  there  may  be  an  exemption  of  a  "business  homestead,"  also.  Leavell 
V.  Lapowskl,  85  Tex.  168,  19  S.  W.  10(H;  Webb  v.  Hayner,  49  Fed.  601,  605. 
But  see  Houston  v.  Newsome,  82  Tex.  75,  17  S.  W.  603. 

•  86  Kelly  V.  Baker,  10  Minn.  154  (Gil.  124);  Phelps  v.  Rooney,  9  Wis.  70; 
Orr  V.  Shraft,  22  Mich.  260;  Palmer  v.  Hawes,  80  Wis.  474,  50  N.  W.  341; 
In  re  Ogburn's  Estate,  105  Cal.  95,  38  Pac.  498;  Groneweg  v.  Beck  (Iowa) 
62  N.  W.  31.  But  see  Rhodes  v.  McCormack,  4  Iowa,  368;  Garrett  v.  Jones,  95 
Ala.  96,  10  South.  702. 

«8T  Thomp.  Homest.  &  Exemp.  113;  Casselman  v.  Packard,  16  Wis.  114; 
McDonald  v.  Clark  (Tex.  Sup.)  19  S.  W.  1023.  Cf.  Martin  Clothing  Co.  v. 
Henly,  83  Tex.  592,  19  S.  W.  167.  But  see  Milford  Sav.  Bank  v.  Ayers,  48 
Kan.  602,  29  Pac.  1149;  Layson  v.  Grange,  48  Kan.  440,  29  Pac.  585;  Bur- 
Sher  V.  Henderson  (Tex.  Civ.  App.)  29  S.  W.  522. 

83  8  Thomp.  Homest.  &  Exemp.  384;  Beecher  v.  Baldy,  7  Mich.  488;  Hutch- 
Ings  V.  Huggins,  59  111.  29;  Ayers  v.  Hawks,  1  111.  App.  600;  Ferguson  v. 
Kumler,  25  Minn.  183;  Moore  v.  Reaves,  15  Kan.  150;  Webster  v.  Trust 
Co.,  93  Ga.  278,  20  S.  E.  310.  The  proceeds  of  sale  aie  not  exempt  Mour- 
aund  V.  Prless,  84  Tex.  554,  19  S.  W.  775. 

888  Ayers  v.  Hawks,  1  111.  App.  600;  Beavan  v.  Speed,  74  N.  C.  544;  Beech- 
«r  V.  Baldy,  7  Mich.  488. 


§   70)  HOMESTEAD HOW    LOST.  i23 

joined  in  the  deed,  to  claim  a  homestead  in  the  premises.""  '  This 
is,  however,  denied  by  some  courts.^"  The  homestead  right  itself 
cannot  be  sold  separately  from  the  premises  out  of  which  the  right 
is  claimed.^"  But  most  cases  hold  that  the  homestead  premises 
may  be  sold  and  the  grantee  hold  them  against  the  grantor's  cred- 
itors."*'' In  many  states,  however,  the  husband  and  wife  must 
both  execute  the  conveyance."**  In  these  states  the  husband's 
sole  deed  is  void,  and  estops  neither  to  claim  a  homestead;  "*'   but 

840Thomp.  Homest.  &  Exemp.  352;  Cox  v.  Wilder,  2  DiU.  45,  Fed.  Cas. 
No.  3,308;  Se.ars  v.  Hanks,  14  Ohio  St.  298;  Castie  v.  Palmer,  6  Allen  (IMass.) 
401;  Smith  v.  Rumsey,  33  Mich.  183;  Murphy  v.  Crouch,  24  Wis.  3G5;  Mul- 
ler  V.  Inderreiden,  79  111.  382. 

841  Piper  V.  Johnston,  12  Minn.  GO  (Gil.  27);  Getzler  v.  Saroni,  18  111.  511; 
Huey's  Appeal,  29  Pa.  St.  219. 

842  McDonald  v.  Crandall,  43  111.  231;  Chamberlain  v.  Lyell,  3  Mich.  458; 
Hewitt  V.  Templeton,  48  111.  367;    Bowyer's  Appeal,  21  Pa.  St.  210. 

8  48  Green  v.  Marks,  25  111.  225;  Fishback  v.  Lane,  36  111.  437;  Lamb  v. 
Shays,  14  Iowa,  567;  Morris  v.  Ward,  5  Kan.  239;  C.  Aultman  &  Co.  v. 
Salinas  (S.  C.)  22  S.  E  465.  This  is  the  rule  in  states  where  judgments 
against  the  owner  are  not  liens  upon  the  homestead,  but  In  other  states 
such  judgments  are  liens  which  remain  In  abeyance  while  the  homestead 
right  exists.  The  latter  rule  prevents  a  sale  of  the  homestead,  except  sul:>- 
ject  to  such  judgment  liens.  Folsom  v.  Carll,  5  Minn.  333  (Gil.  264);  Til- 
lotson  V.  Millard,  7  Minn.  513  (Gil.  419).  See,  also,  Hoyt  v.  Howe,  3  Wis. 
752;    Allen  v.  Cook,  26  Barb.  (N.  Y.)  374;    Jackson  v.  Allen,  30  Ark.  110. 

844  Thomp.  Homest.  &  Exemp.  401;  Snyder  v.  People,  26  Mich.  106;  Ring 
V.  Burt,  17  Mich.  465;  Wallace  v.  Insurance  Co.,  54  Kan.  442,  38  Pac.  489. 
So  a  contract  to  convey  must  be  signed  by  the  wife.  Ring  v.  Burt,  17  Mich. 
465.  The  rule  does  not  apply  to  conveyances  to  the  wife  and  children. 
Riehl  V.  Blngenheimer,  28  Wis.  84.  See,  also,  Castle  v.  Palmer,  6  Allen 
(Mass.)  401;  Malony  v.  Horan,  12  Abb.  Prac.  N.  S.  (N.  Y.)  289;  Turner  v. 
Bernheimer,  95  Ala.  241,  10  South.  750.  Cf.,  however,  Barrows  v.  Barrows, 
138  111.  M9,  28  N.  E.  983. 

The  statutes  usually  provide  for  acknowledgment  by  the  wife  separate 
and  apart  from  the  husband.  Cross  v.  Everts,  28  Tex.  523-532;  Lambert  v. 
Kinnery,  74  N.  C.  348. 

846  Dye  V.  Mann,  10  Mich.  291;  Amphlett  v.  Hibbard,  29  Mich.  298;  Rich- 
ards V.  Chace,  2  Gray  (Mass.)  383;  Williams  v.  Starr,  5  Wis.  534; 
Barton  v.  Drake,  21  Minn.  299;  Wea  Gas,  Coal  &  OU  Co.  v.  Franklin  Land 
Co.,  54  Kan.  533,  38  Pac.  790.  It  is  void  even  as  to  the  husband.  Beecher 
V.  Baldy,  7  Mich.  488;  Phillips  v.  Stauch,  20  Mich.  369;  Myers  v.  Evans, 
81  Tex.  317,  16  S.  W.  1060.     Such  a  conveyance  Is  valid  as  to  any  excess  over 


124  ESTATES    A3    TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.  6 

where  the  conveyance  is  to  secure  a  privileged  debt,'*'  or  if  the 
homestead  has  not  been  selected,  the  conveyance  is  good,  be- 
cause as  to  such  debts  there  is  no  homestead  exemption.'*'  And 
some  cases  hold  that  the  husband's  deed  becomes  operative  by  a 
subsequent  abandonment  of  the  premises  as  a  homestead.*** 

SAME— PRIVILEGED  DEBTS. 

71.  The  homestead  is  exempt  from  liability  for  all  debts, 
except: 

(a)  Public  debts,  in  most  cases. 

(b)  Liabilities  for  torts,  in  some  states. 

(c)  Debts  contracted  before  the  passage  of  the  homestead 

law. 

(d)  Debts  contracted  and  liens  attaching  before  the  ac- 

quisition of  the  homestead,  in  many  states. 

(e)  Debts  contracted  in  removing  incumbrances,  in  a  few 

states. 

(f)  Liens  for  the  creation,  improvement,  or  preservation 

of  the  property,  in  many  states. 

From  most  debts  of  the  owner  a  homestead  is  exempt,'*'  but 
some  debts  are  privileged,  and  these  are  enforceable  against  the 

the  amount  of  the  homestead.  Hait  v.  Houle,  19  Wis.  472;  Ring  v.  Burt,  17 
Mich.  4G5;  Wallace  v.  Harris,  32  Mich.  39S;  Boyd  v.  Cudderback,  31  111.  113; 
Smith  V.  Miller,  Id.  157;  Black  v.  Lusk,  09  111.  70.  See,  also,  Smith  v.  Provln, 
4  Allen  (Mass.)  51G. 

84  8  Bumslde  v.  Teri-y,  51  Ga.  ISG.  In  some  states,  the  husband  may  con- 
vey the  reversionary  interest  in  his  homestead.  Gilbert  v.  Cowan,  3  Lea 
(Tenn.)   203. 

847  People  V.  Plumsted,  2  Mich.  4G5;  Homestead  Ass'n  v.  Enslow,  7  S.  C.  1. 
And  see  Wynne  v.  Hudson,  66  Tex.  1,  17  S.  W.  110;  Chicago,  T.  &  M.  C.  Ry. 
Co.  V.  Titterington,  84  Tex.  218,  19  S.  W.  472. 

34  8  Brown  v.  Coon,  36  111.  243;  McDonald  v.  Crandall,  43  111.  231;  Vasey  v. 
Trustees,  59  111.  188;   Jordan  v.  Godman,  19  Tex.  273. 

849  Ayres  v.  Grill,  85  Iowa,  720,  51  N.  W.  14;  Perry  v.  Ross,  104  Cal.  15,  37 
Pac.  757;  Anthony  v.  Rice,  110  Mo.  223,  19  S.  W.  423;  Webb  v.  Hayner,  49 
iFed.  601,  605;  Walters  v.  Association,  8  Tex.  Civ.  App.  500,  29  S.  W.  51;. 
Hofman  v.  Demple,  53  Kan.  792,  37  Pac.  976. 


§   71)  HOMESTEAD PRIVILEGED   DEBTS.  125 

homestead.""  Most  cases  hold  that  the  land  cannot  be  sold  sub- 
ject to  the  homestead  during  the  time  the  homestead  exists."^ 
The  homestead  is  not  exempt  from  taxes;  ""  but  as  to  other  pub- 
lic debts,  such  as  fines  for  public  offenses  or  liability  on  oflQcial 
bonds,  the  rule  is  not  uniform."'  The  statutes  of  some  states 
make  the  homestead  subject  to  liability  for  torts  and  for  the  costs 
x)f  such  actions.^ ^*  Debts  contracted  before  the  passage  of  a  home- 
stead act  are  privileged  in  all  cases,  since  otherwise  the  constitu- 
tional prohibition  against  impairing  the  obligation  of  contracts 
would  be  infringed.' '^'^  Debts  contracted  prior  to  the  acquisition 
■of  the  homestead  and  liens  so  attaching  '^^  are  in  most  states  en- 
forceable against  the  homestead.'*^  They  include  debts  for  un- 
paid purchase  mcney,'^*  and  vendors'  liens    for  the  same.'^^     A 

«6o  Sfce  Thomp.  Homest.  &  Exemp.  p.  246. 

8  51  Thomp.  Homest.  &  Exemp.  511;  Littell  v.  Jones,  56  Ark.  139,  19  S.  W. 
497j  Cross  v.  Weare,  62  N.  H.  125.  In  some  states  the  homestead  descends 
tc  the  widow  or  childrei.  free  from  all  claims  of  creditors,  and  so  is  not  a 
life  estate,  but  embraces  the  whole  interest  of  the  owner.  Parker  v.  Dean, 
45  Miss.  408;  Fletcher  v.  Bank,  37  N.  H.  369;  Plate  v.  Koehler,  8  Mo.  App. 
396;  Schneider  v.  Hoilmann,  9  Mo.  App.  280;  Lacy  v.  Lockett,  82  Tex.  190, 
17  S.  W.  9xt». 

802  Davis  V.  Sta-e,  60  Ga.  76;  Hubbell  v.  Canady,  58  IlL  426;  Morris  v. 
Ward,  5  Kan.  239;  Com.  v.  Lay,  12  Bush  (Ky.)  284.  But  see  Hlggins  v. 
•Bordages  (Tex.  Sup.)  31  S.  W.  52. 

8B8  Thomp.   Homest.  &  Exemp.  p.  326. 

8B4  Thomp.  Homest.  &  Exemp.  321;  McLaren  v.  Anderson,  81  Ala.  106,  8 
South.  188;    Dunagan  v.  Webster,  93  Ga.  540,  21  S.  E.  65. 

86  6  Gunn  V.  Barry,  15  Wall.  610;    Talley  v.  Thompson,  20  Mo.  277. 

866  In  some  states  a  change  of  homestead  Is  permitted,  and  the  new  home- 
stead has  the  same  exemption  as  the  old.  Mann  v.  Corrington  (Iowa)  61  N. 
W.  409;  White  v.  Kinley,  Id.  176;  Freiberg  v.  Walzem,  85  Tex.  264,  20  S.  W. 
60;  Blum  v.  Light,  81  Tex.  414,  16  S.  W.  1090;  Broome  v.  Davis,  87  Ga.  584, 
13  S.  E.  749;  Green  v.  Root,  62  Fed.  191.  But  see  Peninsular  Stove  Co.  v. 
Roark  (Iowa)  63  N.  W.  326.  But  existing  liens  are  not  prejudiced.  Mabi-y 
V.  Harrison.  44  Tex.  286.     Cf.  Dalton  v.  Webb,  S3  Iowa,  478,  50  N.  W.  58. 

867  Thomp.  Homest.  &  Exemp.  253;  Hensey  v.  Hensey's  Adm'r,  92  Ky. 
164,  17  S.  W.  333;  Titus  v.  Warren,  67  Vt.  242,  31  Atl.  297;  Robinson  v. 
Leach,  67  Vt.  128,  31  AtL  32.  But  see  Ontario  State  Bank  v.  Gerry,  91  Cal. 
94,  27  Pac.  531;    First  Nat.  Bank  v.  Bruce,  94  Cal.  77,  29  Pac.  488. 

«»8  Toole  V.  Dibrell  (Tex.  Civ.  App.)  29  S.  W.  387;  Farmer  v.  Simpson,  6 
Tex.  303;    Stone  v.  Darnell,  20  Tex.  11;    Barnes  v.  Gay,  7  Iowa,  26;    Skinner 


8»»  Thomp.  Homest  &  Exemp.  281.     And  see  post,  p.  192. 


12G  ESTATES    AS   TO    QUANTITY LEGAL    LIFE    ESTATES.  (Ch.   & 

Statute  giving  a  privilege  to  debts  contracted  in  removing  incum^ 
brances  means  an  incumbrance  under  which  the  homestead  could 
be  sold.'"'"  Debts  privileged  because  contracted  in  creating,  im- 
proving,^" or  preserving  the  homestead  include,  in  general,  the 
wages  of  clerks,  servants,  laborers,  and  mechanics.""  Improve- 
ments, within  the  meaning  of  such  statutes,  include  only  real  fix- 
tures.'*' 

FEDERAL  HOMESTEAD  ACT. 

72.  The  federal  homestead  act  provides  for  the  acquisition 
of  title  to  public  lands  by  actual  settlers,  and  ex- 
empts the  land  from  liability  for  debts  contracted 
before  the  patent  is  issued. 

The  federal  homestead  act  is  very  different  from  the  state  home- 
stead laws.  It  provides  a  method  of  acquiring  title  to  public  lands, 
and,  incidentally,  certain  exemptions  during  the  acquisition.  Un- 
der statutes  of  congress,^  «*  the  head  of  a  family  may  acquire  160 
acres  of  land  by  occupying  and  cultivating  a  certain  portion  of  it 
for  five  years,'"  and  lands  so  acquired  are  not  liable  for  ajiy  debts 

V.  Beatty,  16  Cai.  156;  Christy  v.  Dyer,  14  Iowa,  438.  But  see  Loftis  v. 
Loftis,  94  Tenn.  232,  28  S.  W.  1091;  Lone  Star  Brewing  Co.  v.  Felder  (Tex. 
Civ.  App.)  31  S.  W.  524.  As  to  wliat  is  purchase  money,  see  Thomp.  Homest. 
&  Exemp.  §  285;  Allen  v.  Howley,  66  111.  164;  Eyster  v.  Hatheway,  50  111. 
521;  Austin  v.  Underwood,  37  111.  438;  Magee  v.  Magee,  51  111.  500;  Gruhn 
V.  Richardson,  128  111.  178,  21  N.  E.  18. 

860  Griffin  v.  Greutleu,  48  Ga.  148;  Shroeder  v.  Bauer,  140  111.  135,  29  N. 
E.  500;  Hensel  v.  Association,  85  Tex.  215,  20  S.  W.  116;  Watkins  v. 
Spoull,  8  Tex.  Civ.  App.  427,  28  S.  W.  356. 

861  United  States  Inv.  Co.  v.  Phelps  &  Bigelow  Windmill  Co.,  54  Kan.  144, 
■  37  Pac.  982;    Building  &  Loan  Ass'n  of  Daliota  v.  Logan,  14  C.  O.  A.  133, 

66  Fed.  827. 

862  Thomp.  Homest.  &  Exemp.  314;  Tyler  v.  Johnson,  47  Kan.  410,  28  Pac. 
198;    Farinholt  v.  Luckhard,  90  Va.  93G,  21  S.  E.  817. 

868  Greenwood  v.  Maddox,  27  Ark.  G-IS,  GOO;  Marshall  v.  Bacheldor,  47 
Kan.  442,  28  Pac.  168. 

864  As  to  how  far  a  state  homestead  is  exempt  from  liability  on  Judg* 
ments  recovered  in  the  federal  courts,  see  Rev.  St.  U.  S.  1878,  §  916;  Thomp. 
Homest.  &  Exemp.  §  28. 

86B  Seymour  v.  Sanders,  3  Dill.  437,  Fed.  Cas.  No.  12,690.  Or  he  may  ob- 
tain title  sooner  by  making  certain  payments.     Clark  v.  Bayley,  5  Or.  343. 


§   72)  FEDERAL   HOMESTEAD   ACT.  127 

"contracted  prior  to  the  issuing  of  a  patent  tlierefor."  "•  But  such 
a  homestead  may  be  mortgaged  as  soon  as  the  right  to  a  patent 
is  complete,  though  the  patent  has  not  been  issued;  and  so  ex- 
emption from  state  taxation  terminates  at  the  same  time."^ 

In  case  of  his  death,  the  widow  may  thus  commute.  Perry  v.  Ashby,  6 
Neb.  291;   Jarvis  v.  Hoffman,  43  Cal.  314. 

866  Rev.  St.  U.  S.  1878,  §  2296.  And  see  'Dlckerson  v.  Cuthburth,  56  Mo. 
App.  647;  Miller  v.  Little,  47  Cal.  348.  Both  a  state  and  a  federal  home- 
stead cannot  be  held  exempt  at  the  same  time.  Hesnard  v.  Plunkett  (S.  D.) 
60  N.  W.  159. 

8«T  Thomp.  Homest.  &  Exemp,  37d;  Nycum  v.  McAllister,  33  Iowa,  374; 
Bellinger  v.  White,  5  Neb.  399;  Axtell  v.  Warden,  7  Neb.  182;  Carroll  v. 
SafCord,  3  How.  441.     And  see  Weare  v.  Johnson,  20  Colo.  363,  38  Pac.  374. 


128  ESTATES    A3   TO    QUANTITY LESS   THAN    FREEHOLD.  (Ch.  7 

CHAPTER  Vn. 

ESTATES  AS  TO  QUANTITY  (Contlnued)-LESS  THAN  FREEHOLD. 

TS-75.  Estates  for  Years. 

76.  Creation  of  Estates  for  Years. 

77.  Rights  and  Liabilities  of  Landlord  and  Tenant. 
78-79.  Rights  under  Express  Covenants. 

80-8L  Rights  under  Implied  Covenants. 

82.  Rights  Independent  of  Covenants. 

83.  Transfer  of  Estates  for  Years. 
M.  Termination  of  Estates  for  Years. 
85.    Letting  Land  on  Shares. 

80.  Tenancies  at  Will. 

87.  Creation. 

88.  Incidents. 

89.  Termination. 

90.  Tenancies  from  Year  to  Year. 

91.  Creation. 

92.  Incidents. 

93.  Termination. 

94.  Letting  of  Lodgings. 

95.  Tenancies  at  Sufiferance. 

96.  Creation. 

97.  Incidents. 

98.  Termination, 

99.  Licenses. 

100.  Revocation  of  Licenses. 

ESTATES  FOR  YEARS. 

73.  At>  estate  for  years  is  an  estate   created  for  a  definite 

time,  measured  by  years  or  fractions  of  a  year. 

74.  The  grantor  of  an  estate  for  years  is  called  the  "les- 

sor" or  *' landlord";  the  grantee  is  called  the  "les- 
see" or  "tenant." 

75.  A  contract   creating   an   estate  for  years  is  called   a 

"lease." 

An  estate  for  years  is  an  estate  less  than  freehold.    As  seen  by 
the  definition  given  in  the  black-letter  text,  the  duration  of  the  ea- 


§§    73-75)  ESTATES    FOR    YEARS.  129 

tate  is  measured  by  years,  months,  etc.,  and  not  by  some  uncertain 
measure,  like  the  continuance  of  a  life.  Definitions  of  a  lease, 
and  the  names  of  the  parties  to  a  lease,  have  been  given.  The 
term  ''lease,"  however,  is  often  applied  to  instruments  creating 
estates  in  fee  or  for  life  where  a  rent  is  reserved.  By  the  creation 
of  an  estate  for  years,  the  modern  relation  of  landlord  and  tenant  is 
established  between  the  creator  of  the  estate  or  owner  of  the  re- 
version and  the  grantee  or  owner  of  the  estate  for  years. 

Historical. 

By  the  early  common  law  a  lessee  had  no  interest  which  the  law 
would  protect  against  third  persons,  nor,  indeed,  against  the  les- 
sor, unless  the  interest  in  the  lands  rested  on  a  covenant  by  deed. 
It  had  been  the  practice  from  very  early  times  to  grant  leases  by 
deed,  and  in  such  a  case,  if  the  lessor  wrongfully  ejected  the  lessee, 
the  lessee  had  his  remedy  by  action  on  the  covenant,  as  in  the  case 
of  any  other  covenant  under  seal.  A  new  writ  was  introduced, 
which  afforded  the  lessee  a  remedy  against  his  lord,  whether  the 
lease  was  by  deed  or  not,  and  also  gave  him  a  right  to  protection 
against  ejectment  by  a  third  person,  and  probably  an  additional 
remedy,  by  enabling  the  lessee  to  recover  possession  of  the  land, 
and  not  merely  damages  for  breach  of  covenant.  This  was  called 
the  "writ  of  ejectio  firmse," — a  proceeding  which,  by  a  series  of 
fictions,  was  extended  till,  in  the  form  of  the  action  of  ejectment, 
it  became  the  appropriate  means  of  asserting  the  right  to  the  pos- 
session of  land,  under  whatever  title,  and  took  its  place  as  the 
statutory  substitute  for  all  the  forms  of  real  actions.  Thus  the 
interest  of  the  termor  or  lessee  for  years,  instead  of  resting  at  best 
npon  a  covenant  with  his  lessor,  and  therefore  being  enforceable 
only  as  against  him,  became  a  right  of  property,  which  could  be 
enforced  against  anv  wrongdoer,  by  a  remedy  analogous  to  that 
provided  for  a  wrongful  ouster  of  a  freeholder  from  his  possession. 
Thus  these  interests  became  estates  or  rights  of  property  in  land.* 

1  Dig.  Real  Prop.  (4th  Ed.)  176. 

REALPKOP.— 9 


4 


/ 


130  EaXATES    A3    TO    QUANTITY LESS    THAN    FREEHOLD.  (Ch.   7 

SAME— CREATION  OF  ESTATES  FOR  YEARS. 

76.  The  creation  of  estates  for  years  is   subject  to  the  fol- 
Icwing  rules: 

(a)  They  can    be    created    only    by    contract    or    devise 

(p.  130). 

(b)  The   parties  must  be   competent,  and   the   lessor   or 

testator  must  have  an  estate  out  of  which  an 
estate  for  years  may  be  created  (p.  131). 

(c)  There  must  be  a  writing,  if  the   estate   is  for  more 

than: 

(1)  One  year  in  some  states. 

(2)  Three  years  in  other  states  (p.  132). 

(d)  They  may  begin  in  futuro  (p.  133). 

(e)  They  may  be   created   to   continue    any   number    of 

years,  except: 
EXCEPTION— In    some    states,   by    statute,    estates    for 
years    cannot   be  created   for   more   than  a  limited 
number  of  years  (p.  133). 

Contract  or  Devise. 

Estates  for  years  can  arise  only  by  act  of  parties,  not  by  oper- 
ation of  law.*  After  an  estate  for  years  is  in  existence,  it  may 
be  transferred  by  operation  of  law,  but  it  cannot  come  into  exist- 
ence in  that  w^ay.  Estates  for  years  are  usually  created  by  con- 
tract,— that  is,  by  lease, — though  they  may  arise  by  devise.  In 
the  latter  case  no  contractual  obligations  are  imposed  on  the  dev- 
isee, unless  there  are  conditions  contained  in  the  devise  which  the 
devisee  becomes  bound  to  perform  by  accepting  the  devise. 

Same — Lease  and  Agreement  for  a  Lease. 

The  distinction  between  a  lease  and  an  agreement  for  a  future 
lease  should  be  noted.     Where  the  point  is  in  doubt,  the  test  in 

»  Poppers  V.  Meagher,  148  111.  192,  85  N.  E.  805;  Board  of  Sup'rs  of  Cass 
Co.  V.  Cowgill,  97  Mich.  448,  56  N.  W.  849;  Sawyer  v.  Hanson,  24  Me.  542; 
Loring  v.  Taylor,  50  Mo.  App.  80.  But  see  Roe  v.  Ward,  1  H.  Bl.  97; 
Bishop  V.  Howard,  2  Barn.  &  C  100;  Skinner  r.  Skinner,  88  Neb.  756,  57 
N.  W.  534. 


§    76)  CREATION    OF    ESTATES    FOR    YEARS.  .     131 

all  cases  is  tlie  intention  of  the  parties."  The  distinction  is  Impor- 
tant, because  a  written  lease,  fully  executed,  cannot  be  varied  by 
parol,  while,  if  it  is  only  a  contract  for  a  lease,  omitted  terms  and 
conditions  may  be  supplied  according  to  the  intention  of  the  par- 
ties.* 

Who  may   Create  Estates  for  Years. 

"Any  person  who  by  law  may  hold  real  estate,  and  who  is  under 
no  legal  disability,  may  make  a  lease  of  lands  that  accords  with 
his  estate  or  interest  therein."  '  The  qualifications  required  by 
law  for  ijarties  to  leases  are  the  same  as  for  parties  to  a  contract 
Therefore  leases  by  and  to  infants,'  lunatics,  and  intoxicated  per- 
sons are  voidable,  rather  than  void.''  But,  except  as  now  changed 
by  statute,  leases  by  a  married  woman  of  lands  not  part  of  her 
separate  estate  are  void,'  the  husband  having  the  sole  power  to 
lease  such  lands.'  Leases  may  be  made  by  agents,^"  guardians,^^ 
executors  to  whom  land  is  devised,^*  and  trustees.  But,  where  the 
cestui  que  trust  does  not  join,  a  lessee  who  has  notice  of  the  trust 
holds  as  trustee  himself.^' 

No  lease  of  land  is  valid  where  the  lessor  has  been  disseised, 

»  Goodtitle  v.  Way,  1  Term  R.  735;  Bacon  v.  Bowdoin,  22  Pick.  (Mass.) 
401;  Western  Boot  &  Shoe  Co.  v.  Gannon,  50  Mo.  App.  642;  Poole  v.  Bent- 
ley,  12  East,  168. 

*  1  Washb.  Real  Prop.  (5th  Ed.)  483;    McFarlane  v.  Williams,  107  111.  S3. 

6  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  §  80. 

e  Clark,  Cont.  210;  Field  v.  Herrick,  101  111.  110;  Griffith  v.  Schwender- 
luan,  27  Mo.  412. 

T  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  107;  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  228. 
Cf.  Nichol  V.  Thomas,  53  Ind.  42.  But  when  the  lunatic  is  under  guard- 
ianship his  leases  are  void.  See  Elston  v.  Jasper,  45  Tex.  409.  And  see 
V^an  Deuseu  v.  Sweet,  51  N.  Y.  378. 

8  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  216;  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  Ill; 
Murray  v.  Emmons,  19  N.  H.  483. 

»  See  ante,  p.  71. 

10  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  148;    1  Wood,  LandL  &.  Ten.  (2d  Ed.)  267. 

11  Hughes'  Minors'  Appeal,  53  Pa.  St.  500;  Hicks  v.  Chapman,  10  Allen 
(Mass.)  463.  Leases  by  guardians  must  not  be  for  an  unreasonable  length  of 
time,  as  beyond  the  minority  of  the  ward.  Ross  v.  Gill,  4  Call  (Va.)  250;  Van 
Doren  v.  Everltt,  5  N.  J.  Law,  460. 

12  1  Wood,  Landl.  &  Ten.  (Jd  Ed.)  238;   1  TayL  Landl.  &  Ten.  (8th  Ed.)  144. 
i«  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  312;  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  14L 


132  ESTATES    AS    TO    QUANTITY LESS    THAN    FREEHOLD.  (Ch.   7 

and  the  land  is  held  adversely."  Tenants  for  life,  as  In  dower, 
by  curtesy,  and  per  autre  vie,  can  maJve  demises  of  the  land  which 
are  valid  until  the  termination  of  the  life  estate.'"  Joint  tenants,^' 
tenants  in  common,^'  and  co-parceners '»  can  lease  their  undivided 
portions  without  the  consent  of  the  co-owners.^'  Leases  by  a 
mortgagor  pnor  to  the  mortgage  are  valid  against  the  mortgagee,^" 
but  not  if  subsequent  to  the  execution  of  the  mortgage,  where  the 
mortgagee  does  not  join.'^ 

By  the  statutes  of  frauds"  of  the  several  states,  leases  for 
longer  than  a  year  (or  three  years  in  some  states)  must  be  in 
writing,"  and  some  statutes  require  a  deed  "  for  leases  of  more 
than  a  specified  length."  The  words  generally  used  in  granting 
an  estate  for  years  are  "lease,"  "demise,"  and  "farm  let,"  signifying 
the  creation  of  a  present  interest.*'  But  other  words  will  be  suffi- 
cient if  the  meaning  is  clear.'^ 

14  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  96;   1  Wood,  Landl.  &  Ten.  (2d  Ed.)  32-5. 

18  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  122;  Mclntyre  v.  Clark,  6  Misc.  Rep.  377, 
26  N.  Y.  Supp.  744;  Sykes  v.  Benton,  90  Ga.  4U2,  17  S.  E.  1002;  Coakley  v. 
Ghamberlain,  1  Sweeny  (N.  Y.)  676. 

16  See  post,  p.  333. 

17  See  post,  p.  335. 

18  See  post,  p.  336. 

10  1  Tayl.  Laudl.  «&  Ten.  (8th  Ed.)  123.  Cf.  Talntef  v.  Cole,  120  Mass.  162. 
And  see  Grabfelder  v.  Gazettl  (Tex,  Civ.  App.)  26  S.  W.  436. 

20  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  129;  Moss  v.  Gallimore,  1  Doug.  279; 
Hogers  V.  Humphreys,  4  Adol.  &  E.  299. 

21 1  Tayl.  Laudl.  «&  Ten.  (8th  Ed.)  128;  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  254. 
And  see  post,  p.  IflS. 

2  2  For  the  memorandum,  signing,  etc.,  required  by  the  statute  of  frauds, 
see  Clark,  Cont.  p.  114, 

23  1  stim.  Am.  St  Law,  §  4143;  2  Shars.  &  B.  Lead.  Cas.  Real  Prop.  54. 

2  4  See  post,  p.  415. 

2  5  Bee  1  Stim.  Am.  St  Law,  §  1471;  2  Shars.  &  B.  Lead.  Gas.  Real  Prop.  55. 
And  see  Bratt  v.  Bratt  21  Md.  578.  But  cf.,  as  to  the  other  terms.  Doe  v. 
Bell,  5  Term  R.  471;  Doe  v.  Stratton,  4  Bing.  446;  Richardson  v.  Gifford,  1 
Adol.  &  E.  52.  In  the  absence  of  such  a  deed,  the  lessee  is  tenant  from  year 
to  year.     Clayton  v.  Blakey,  8  Term  R.  3. 

28  Aveilll  v.  Taylor,  8  N.  Y.  44;  Wright  v.  Trevezant,  8  Car.  &  P.  441;  Doe 
T.  Benjamin,  9  AdoL  &  E.  644. 

«»  Doe  V.  Ries,  8  Bing.  178;   Roe  v.  Ashburner,  5  Term  R.  163;   Jackson  v. 


§   76)  CREATION   OP   ESTATES    FOR   YEARS.  133 

Com/mencement. 

A  term  of  years  may  be  granted  to  begin  in  the  future,*'  provided 
the  time  is  not  postponed  beyond  the  period  allowed  by  the  rule 
against  perpetuities.**  An  estate  of  freehold  cannot  be  so  limited 
at  common  law,  because  freehold  estates  were  transferred  by  feoff- 
ment and  livery  of  seisin;  that  is,  by  transfer  of  possession.  This 
was  a  present  act,  and  livery  could  not  be  made  to  operate  at  some 
future  time.  The  creation  of  an  estate  for  years,  to  begin  in  fu- 
turo,  does  not  violate  the  common-law  rule,  since  the  only  right  the 
tenant  has  is  a  contract  right  to  have  the  possession  at  a  future 
time.  The  seisin  remains  in  the  landlord,  and  the  tenant  tates  no 
present  estate. 

8wme — Interesse  Termini. 

The  interest  which  a  lessee  has  between  the  making  of  the  lease 
and  his  entry  into  possession  is  called  an  "interesse  termini."  This 
interest  is  assignable,'"  and  as  soon  as,  by  the  terms  of  the  lease, 
the  lessee  is  entitled  to  possession,  he  may  maintain  ejectment.'^ 
This  right  of  entry  is  not  destroyed  by  the  death  of  the  lessor  or 
of  the  lessee.'* 

Duration, 

In  most  states,  estates  for  years  may  be  created  for  any  length 
of  time,  but  in  a  few  states  there  are  statutes  which  forbid  their 
creation  for  more  than  limited  periods,  ranging  from  10  to  20 
years."     Estates  for  years  must  be  so  limited  that  they  will  ter- 

Delacroix,  2  Wend.  (N.  Y.)  433;  Watson  v.  O'Hem,  6  Watts  (Pa.)  362;  Moore 
V.  Miller,  8  Pa.  St.  272;  Moshier  v.  Reding,  12  Me.  478;  Smith  v.  Hubert,  83 
Hun,  503,  31  N.  Y.  Supp.  1076.  A  lease  of  "a  building"  is  a  lease  of  the  land 
on  which  it  stands.     Lanpher  v.  Glenn,  37  Minn.  4,  33  N.  W.  10. 

2  8  Colclough  V.  Carpeles,  89  Wis.  239,  61  N.  W.  836;  Cadell  v.  Palmer,  1 
Clark  &  F.  372;  Field  v.  Howell,  6  Ga.  423;  Whitney  v.  Allaire,  1  N.  Y.  305; 
Weld  V.  Tralp,  14  Gray  (Mass.)  330. 

28  See  post,  p.  322;.  Gomez  v.  Gomez,  81  Hun,  566,  31  N.  Y.  Supp.  206. 

«o  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  452;  Soffyns'  Case,  5  Coke,  123b;  Wood 
T.  Hubbell,  10  N.  Y.  488. 

81  Doe  V.  Day,  2  Q.  B.  Div.  156;  Gardner  v.  Keteltas,  3  Hill  (N.  Y.)  332; 
Trull  v.  Granger,  8  N.  Y.  115;  Whitney  v.  Allaire,  1  N.  Y.  305,  311. 

32  1  Wood.  Landl.  &  Ten.  (2d  Ed.)  452;  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  14; 
Co.  Litt.  46b. 

««1  Stim.  Am.  St  Law,  S  1841;   2  Shars.  &  B.  Lead.  Cas.  Real  Proo    44. 


134  ESTATES    AS    TO    QUANTITY I.ESS    THAN    FREEHOLD.  (Ch.  7 

rainate  at  a  definite  time,  or  at  a  time  which  can  be  made  certain." 
However,  a  condition  by  which  the  estate  may  be  determined  be- 
fore the  expiration  of  the  time  for  which  it  is  limited  does  not 
make  it  invalid.  For  instance,  a  demise  to  a  man  for  99  years, 
if  he  live  so  long,  is  good."*  Nor  does  an  option  residing  in  one 
party  to  put  an  end  to  the  lease  at  any  time  make  it  invalid."' 

SAME— RIGHTS     AND     LIABILITIES     OP     LANDLORD    AND 

TENANT. 

77.  The  rights  and  liabilities  of  landlord  and  tenant  may, 

for  convenience  of  treatment,  be  divided  into  three 
classes: 

(a)  Rights  under  express  covenants  (p.  134), 

(b)  Rights  under  implied  covenants  (p.  138). 

(c)  Rights  independent  of  covenants  (p.  141). 

78.  RIGHTS   UNDER   EXPRESS   COVENANTS— By   ex- 

press covenants  the  parties  may  vary  their   rights 
and  liabilities  almost  at  ■will. 

79.  Express  covenants  are  either: 

(a)  Personal;  or 

(b)  Such  as  run  -with  the  land. 

In  many  states,  leases  for  more  than  a  certain  number  of  years  must  be  re- 
corded. Post,  p.  218;  1  Stim.  Am.  St.  Law,  §  1624;  1  Shars.  &  B.  Lead.  Cas. 
Real  Prop.  56.  And  see  Toupin  v.  Peabody,  162  Mass.  473,  39  N.  B.  280.  An 
estate  for  years  may  be  for  a  single  year,  or  even  a  less  peiiod.  Brown  v. 
Bragg,  22  Ind.  122. 

34  Murray  v.  Clierrington,  99  Mass.  229;  Horner  v.  Leeds,  25  N.  J.  Law,  100; 
Cargar  v.  Fee,  140  Ind.  572,  39  N.  E.  93;  Goodright  v.  Richardson,  3  Term  R. 
402.  For  the  method  of  computing  time  under  a  lease,  see  Atiiins  v.  Sleeper, 
7  Allen  (Mass.)  487;  Deyo  v.  Bleakley,  24  Barb.  (N.  Y.)  9;  Sheets  v.  Selden's 
Lessee,  2  Wall  177. 

«» 1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  86.  And  see  Lacey  v.  Newcomb  (Iowa)  63 
N.  W.  704. 

8«  King  V.  Ransom,  86  Wis.  496;  56  N.  W.  1084.  Cf.  Clifford  v.  Gres- 
singer,  96  Ga.  789,  22  S.  B.  399.  And  see,  as  to  privilege  of  renewal,  Pearce 
V.  Turner,  150  111.  116,  36  N.  E.  962;  Robinson  v.  Beard,  140  N.  Y.  107,  35  N. 
E.  441;  Bullock  v.  Grinstead,  95  Ky.  261,  24  S.  W.  867;  Hughes  v.  Wlndpfen- 
nig  (Ind.  App.)  37  N.  B.  432. 


§§   77-79)      RIGHTS    AND   LIABILITIES   OF    LANDLORD    AND   TENANT.         135 

The  mutual  obligations  of  lessor  and  lessee  are  fixed  almost  en- 
tirely by  contract;  that  is,  by  the  covenants  of  the  lease.  An  ex- 
press covenant  is  an  agreement  under  seal,^^  though  the  same  term 
is  used  in  those  states  where  seals  are  abolished.  The  most  usual 
covenants  by  the  lessor  are  for  quiet  enjoyment,^*  against  incum- 
brances," to  repair,*"  and  to  renew  the  lease."  The  lessee  generally 
covenants  to  pay  rent,*Ho  insure,*^ and  not  to  assign**  or  underlet.*' 

«7  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  2,  94;  Clark,  Cont.  72.  No  precise  lan- 
guage is  necessary  to  constitute  a  covenant.  It  may  be  in  tlie  form  of  a 
condition.  Surplice  v.  Farnswortli,  7  Man.  &  G.  576.  Or  an  exception.  Rus- 
sel  V.  Gulwel,  Cro.  Eliz.  657;  Lowell  Soutli  Congregational  Meeting  House 
V.  Hilton,  11  Gray  (Mass.)  407.  Or  a  recital.  Penn  v.  Preston,  2  Rawle  (Pa.) 
14;    Vauglian  v.  Matlock,  23  Ark.  9. 

8  8  Shelton  v.  Codman,  3  Cush.  (Mass.)  318;  Markland  v.  Crump,  1  Dev.  & 
B.  (N.  C.)  94;  Suydam  v.  Jones,  10  Wend.  (N.  Y.)  180;  Hunt  v.  Amidon,  4 
Hill  (N.  Y.)  345;  Friedland  v.  Myers,  139  N.  Y.  432,  34  N.  B.  1055;  Campbell 
V.  Lewis,  3  Barn.  &  Aid.  392.  Of.  Hochenauer  v.  Hilderbrant  (Colo.  App.) 
-10  Pac.  470;    Sheets  v.  Joyner,  11  Ind.  App.  205,  38  N.  E.  830. 

3  9  Ober  V.  Brooks,  162  Mass.  102,  38  N.  E.  429;  Sprague  v.  Baker,  17  Mass. 
585;  Gilbert  v.  Bulkley,  5  Conn.  262;  Pillsbury  v.  Mitchell,  5  Wis.  17;  Red- 
wine  V.  Brown,  10  Ga.  311. 

*ojohn  Morris  Co.  v.  Southworth,  154  111.  118,  39  N.  E.  1099;  Thomson- 
Houston  Electric  Co.  v.  Durant  Land-Imp.  Co.,  144  N.  Y.  34,  39  N.  E.  7; 
Clapper  v.  Kells,  78  Hun,  34,  28  N.  Y.  Supp.  1018;  Dunn  v.  Robbins,  65  Hun, 
025,  20  N.  Y.  Supp.  341;  Clifton  v.  Montague  (W.  Va.)  21  S.  E.  858;  Mumford 
V.  Brown,  6  Cow.  (N.  Y.)  475;  Post  v.  Vetter,  2  E.  D.  Smith  (N.  Y.)  248; 
Benjamin  v.  Heeney,  51  111.  492.  The  landlord  must  be  notified  that  repairs 
are  needed.  Ploen  v.  Staff,  9  Mo.  App.  309;  Walker  v.  Gilbert,  2  Rob.  (N.  Y.) 
214;   Wolcott  V.  Sullivan,  6  Paige  (N.  Y.)  117. 

41  Piggot  V.  Mason,  1  Paige  (N.  Y.)  412,  Renoud  v.  Daskam,  34  Conn. 
512;  Blackmore  v.  Boardman,  28  Mo.  420;  Kolasky  v.  Michels,  120  N.  Y. 
(535,  24  N.  E.  278.  A  covenant  for  perpetual  renewal  is  good.  Blackmore 
V.  Boardman,  28  Mo.  420.  But  see  Western  Transp.  Co.  v.  Lansing,  49  N. 
Y.  499. 

*«  Hurst  V.  Rodney,  1  Wash.  O.  C.  375,  Fed.  Cas.  No.  6,937;  Main  v. 
Feathers,  21  Barb.  (N.  Y.)  646;  Jacques  v.  Short,  20  Barb,  (N.  Y.)  269;  Dem- 
arest  v.  Willard,  8  Cow.  (N.  Y.)  206;  Thomson-Houston  Electric  Co.  v.  Du- 
rant Land  Imp.  Co.,  144  N.  Y.  34,  39  N.  E.  7.    Further,  as  to  rent,  see  post, 

p.  140. 

4«  Vernon  v.  Smith,  5  Bam.  &  Aid.  1;  Doe  v.  Peck,  1  Barn.  &  Adol.  428; 
Thomas'  Adm'r  v.  Von  Kapflf's  Ex'rs,  6  Gill  &  J.  (Md.)  372. 

*4  See  note  44  on  following  page.  *»  See  note  45  on  following  page. 


136  ESTATES    AS    TO    QUANTITY LESS   THAN    FREEHOLD.  (Ch.   7 

Sornetinies  covenants  are  inserted  binding  him  to  repair,**  to  re- 
side on  the  premises,*^  not  to  engage  in  certain  trades,*^  to  build 
in  a  prescribed  manner,*'  or,  if  a  farm  lease,  to  cultivate  in  a  cer- 
tain way."^"  The  parties  may,  of  course,  make  such  further  special 
covenants  as  they  see  fit."^ 
Personal  Covenants  and  Covenants  Rurvnvng  with  the  La/ncL^* 

Covenants  which  may  be  enforced  by  the  assignee  "  of  the  term 
or  of  the  reversion  "*  are  said  to  run  with  the  land.  If  a  covenant 
touches  or  concerns  the  thing  demised,  and  there  is  privity  of 
estate  between  the  parties,  it  runs  with  the  land."  If  it  relates 
to  something  in  existence  when  the  lease  was  executed,  the  as- 

*«  Williams  v.  Earle,  9  Best  «&  S.  740;  Matthews  v.  Whitaker  (Tex.  Civ. 
App.)  23  S.  W.  538. 

-6  Kew  V.  Trainor,  150  111.  150,  37  N.  E.  223. 

<6  Scott  V.  Brick  Co.,  135  N.  Y.  141,  31  N.  B,  1102.  Cf.  Standen  v.  Chris- 
mas,  10  Q.  B.  Div.  135.  But  see  1  Stim.  Am.  St  Law,  §  2045.  The  covenant  to 
repair  Is  always  Implied.    See  post,  p.  139. 

*■>  Tatem  v.  Chaplin,  2  H.  Bl.  133. 

*8  Miller  v.  Prescott,  163  Mass.  12,  39  N.  E.  409.  And  see  Kugel  v.  Painter, 
166  Pa.  St.  592,  31  Atl.  338;  Round  Lake  Ass'n  v.  Kellogg,  141  N.  Y.  348, 
36  N.  E.  326. 

*»  Mayor,  etc.,  of  New  York  v.  Brooklyn  Fire  Ins.  Co.,  41  Barb.  (N.  Y.) 
231;  Mayor,  etc.,  of  New  York  v.  Hamilton  Fire  Ins.  Co.,  10  Bosw.  (N.  Y.) 
537. 

50  Cockson  V.  Cock,  Cro.  Jac.  125.     See,  also,  Callan  v.  McDaniel,  72  Ala.  96. 

Bl  See  Postal  Tel.  Cable  Co.  v,  W.  U.  Tel.  Co.,  155  111.  335,  40  N.  E.  587; 
Keating  v.  Springer,  146  111.  481,  34  N.  E.  805;  Pewaukee  Milling  Co.  v. 
Howitt,  86  Wis.  270,  56  N.  W.  784;  Leydecker  v.  Brintnall,  158  Mass.  292,  33 
N.  E.  399;  McManus  v.  Shoe,  etc.,  Co.,  1  Mo.  App.  Rep'r,  73;  Cargill  v.  Thomp- 
son, 57  Minn.  534,  59  N.  W.  638. 

62  See  Clark,  Cont.  545,  for  a  discussion  of  this  subject. 

6  3  The  assignee  is  bound  by  privity  of  estate,  while  the  personal  repre- 
sentative is  bound  by  privity  of  contract.  1  Tayl.  Landl.  &  Ten.  (8th  Ed.) 
308;  Spencer's  Case,  5  Coke.  16.  See,  also.  Mlnshull  v.  Oakes,  2  Hurl.  &  N. 
793;  Martyn  v.  Clue,  18  Q.  B.  Div,  661;  Hansen  v.  Me^er,  81  IlL  321. 

6*  Assignees  of  the  lessor  could  not  enforce  covenants  against  the  lessee 
or  his  assignees  until  the  statute  of  32  Hen.  VIII.  c.  34. 

BB  1  Tayl,  Landl.  &  Ten.  (8th  Ed.)  308;  Morse  v.  Aldrich,  19  Pick.  (Mass.) 
449;  Piggot  V.  Mason,  1  Paige  (N.  Y.)  412;  Norman  v.  Wells,  17  Wend.  (N,  Y,) 
L36;  Wooliscroft  v.  Norton,  15  Wis.  198;  Blackmore  v.  Boardman,  28  Mo.  420; 
Gordon  v.  George,  12  Ind.  408;  Tatem  v.  Chaplin,  2  H.  Bl.  133;  Vernon  v. 
Smith,  5  Barn.  &  Aid.  1;   Vyvyan  v.  Arthur,  1  Bam.  &  C.  410;    Williams  v. 


§§    77-79)       RIGHTS    AND    LIABILITIES    OF   LANDLORD   AND   TENANT.        137 

signees  may  enforce  it  without  being:  named  in  the  lease."'  But, 
if  it  relates  to  something  not  in  existence  at  that  time,  the  as- 
signees must  be  named  in  the  covenant,  or  they  cannot  enforce  it."^^ 
In  no  case,  however,  are  the  lessee's  assigns  bound  by  personal 
covenants  between  the  original  parties.'"  Covenants  to  repair, ''• 
pay  rent,***  cultivate  in  a  certain  mode,  for  quiet  enjoyment,  etc., 
run  with  the  land,®^  as  do  also  all  implied  covenants,®''  while  cove- 
nants purely  personal,  such  as  an  agreement  to  pay  the  lessee 
for  a  building  to  be  erected  by  him,  do  not  run  with  the  land.*'^ 
So  a  covenant  to  build  a  wall  in  a  certain  place  would  not  bind 
an  assignee  of  the  term.®*  A  lessee  is  bound  by  an  express  cove- 
nant, even  though  he  has  assigned  the  tenn,®'^  and  so  is  the  lessor.** 

Earle,  L.  R.  3  Q.  B.  739.  Cf.  MinshuU  v.  Oakes,  2  Hurl.  &  N.  793.  And  see, 
for  covenants  running  with  the  land,  between  parties  not  lessor  and  lessee, 
National  Union  Bank  v.  Se^r,  39  N.  J.  Law,  173;  Hurd  v.  Curtis,  19  Pick. 
(Mass.)  459;    Lyon  v.  Parker,  45  Me.  474. 

06  Parkenham's  Case,  Y.  B.  42  Edw.  III.  c.  3,  pi.  14;  Anon.,  Moore,  179,  pi. 
318. 

6T  Spencer's  Case,  5  Coke,  16;  Hansen  v.  Meyer,  81  111.  321;  Masury  v. 
Southworth,  9  Ohio  St.  340;  Doe  v.  Seaton,  2  Cromp.,  M.  &  R.  730;  Verplanck 
v.  Wright,  23  Wend.  (N.  Y.)  506;  Wakefield  v.  Brown,  9  Q.  B.  Div.  209. 

5  8  Mayor,  etc.,  of  Congleton  v.  Pattison,  10  East,  130;  Dolph  v.  White,  12  N. 
Y.  296;  Curtiss  v.  White,  Clarke,  Ch,  (N.  Y.)  389;  Inhabitants  of  Plymouth  v. 
Carver,  16  Pick.  (Mass.)  183;  Spencer's  Case,  supra;  Gray  v.  Cuthbertson, 
2  Chit.  482.  Cf.  Mayho  v.  Buckhurst,  Cro.  Jac.  438;  Dolph  v.  White,  12  N. 
Y.  296. 

B8  Congham  v.  King,  Cro.  Car.  221;  Twynam  v.  Pickard,  2  Bam.  &  Aid.  105. 
«o  Trask  v.  Graham,  47  Minn.  571,  50  N.  W.  917.     But  see,  as  to  a  subtenant, 
Holford  V.  Hatch,  1  Doug.  183. 
fli  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  313;   1  Wood,  Landl.  &  Ten.  (2d  Ed.)  673. 

6  2  1  Tayl.  Landl.  &  Ten,  (8th  Ed.)  313. 

68  Thompson  v.  Rose,  8  Cow.  (N.  Y.)  266;  Bream  v.  Dickerson,  2  Humph. 
,(Tenn.)  126;  Hansen  v.  Meyer,  81  111.  321;  Mayor,  etc.,  of  Congleton  v.  Pat- 
tison, 10  East,  138;  Sampson  v.  Easterby,  9  Bam.  &  O.  505.  Cf.  Thomas 
V.  Hayward,  L.  R,  4  Exch.  311.  Such  a  covenant  may  be  enforced  by  an 
assignee  of  the  lessee.     Hunt  v.  Danforth,  2  Curt-  592,  Fed.  Cas.  No.  6.887. 

64  Spencer's  Case,  5  Coke,  16a.  And  see  Norman  v.  Wells,  17  Wend-  (N.  Y.> 
136;    Masury  v.  Southworth,  9  Ohio  St.  340. 

•8  Barnard  v.  Godscall,  Cro.  Jac.  309.    See  post,  p.  149. 

«•  Jones  V.  Parker,  163  Mass.  564,  40  N.  B.  10i4. 


138  I8TATES    AS    TO    QUANTITY LE99    THAN    FREEHOLD.  (Ch.  7 

80.  RIGHTS  UNDER  IMPLIED  COVENANTS— The  prin- 

cipal implied  covenants  in  a  lease  are: 

(a)  By  the  lessor,  for  quiet  enjoyment  and  to  pay  taxes. 

(b)  By  the   lessee,  to   repair,  to  cultivate   in  a  husband- 

manlike manner,  and  to  pay  rent. 

81.  Implied  covenants  al-vrays  run  with  the  land. 

Implied  Covenants — Bij  the  Lessor^ 

Besides  express  covenants,  there  are  others  which  are  implied  by 
law  from  the  execution  of  the  lease.®'  It  is  held  that  the  words 
"demise"  or  "grant"  imply  a  covenant  by  the  lessor  for  quiet  en- 
joyment." This  covenant  is  broken  only  by  an  actual  disturbance 
of  possession  or  enjoyment.''"  A  failure  of  title,  unless  followed 
by  an  ouster,  would  not  constitute  a  breach.'*  And  an  eviction,  to 
have  that  effect,  must  be  under  a  legal  title.''*  The  lessor  does  not 
covenant  against  trespassing  or  other  wrongful  disturbance  by 
strangers.'^     There  is  also  an  implied  covenant  by  the  lessor  that 

8T  For  a  discussion  of  Implied  contracts,  see  Clark,  Cont  c.  13. 

«8  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  301;    1  Wood,  Landl.  &  Ten.  (2d  Ed.)  691. 

«B  Duncklee  v.  Webber,  151  Mass.  408,  24  N.  E.  1082;  Grannls  v.  Clark, 
8  Cow.  (N.  Y.)  36;  Barney  v.  Keith,  4  Wend.  (N.  Y.)  502;  Tone  v.  Brace,  8 
Paige  (N.  Y.)  597;  Stott  v.  Rntlierford,  92  U.  S.  107;  Maule  v.  Ashmead,  20 
Pa.  St.  482;  Hamilton  v.  Wright,  28  Mo.  199;  Wade  v.  Halligan,  16  111.  507. 
But  see  Sedberry  v.  Verplanck  (Tex.  Civ.  App.)  31  S.  W.  242;  Groome  v. 
Ogden  City  Corp.,  10  Utah,  54,  37  Pac.  90. 

TO  Dexter  v.  Manley,  4  Cush.  (Mass.)  14;  Sherman  v.  Williams,  113  Mass. 
481;  International  Trust  Co.  v.  Schumann,  158  Mass.  287,  33  N.  B.  509; 
Dyett  V.  Pendleton.  8  Cow.  (N.  Y.)  727;  Edesheimer  v.  Quackenbush,  68 
Ilun,  427,  23  N.  Y.  Supp.  75;  Lounsbery  v.  Snyder,  31  N.  Y.  514;  Schilling  v. 
Holmes,  23  Cal.  227;  Moore  v.  Weber,  71  Pa.  St.  429.  Of.  Cole's  Case,  1 
Salk.  196. 

71  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  355;  1  Wood,  Landl.  &  Ten.  (2d  Ed.) 
771;  Sedgwick  v.  HoUenback,  7  Johns.  (N.  Y.)  376;  Stanard  v.  Eldridge,  16 
Johns.  (N.  Y.)  254;  Mills  v.  Sampsel,  53  Mo.  360.  Even  a  recovery  in  eject- 
ment Is  no  breach,  unless  It  Is  followed  by  an  ouster.  Kerr  v.  Shaw,  13 
Johns.  (N.  Y.)  236. 

T2  Morse  v.  Goddard,  13  Mete.  (Mass.)  177;  Ross  v.  Dysart,  33  Pa,  St  452; 
Moore  v.  Weber,  71  Pa.  St.  429;    Mack  v.  Patchin,  42  N.  Y.  167. 

T*  A  mere  trespass  by  the  lessor  would  not  be  a  breach,  as  It  is  not  an 
eviction.    Mayor,   etc.,  of  New   York   v.   Mable,   13  N.   Y.   151;    Hayner  v. 


'§§   80-81)       RIGHTS    AND    LIABILITIES    OF    LANDLORD    AND    TENANT.         139 

he  will  pay  all  taxes  and  assessments  levied  on  the  premises  de- 
mised/* But  there  is  no  covenant  implied  that  the  premises  are 
in  a  tenantable  condition.'" 

Same — By  the  Lessee, 

On  the  part  of  the  lessee,  there  is  an  implied  covenant  to  repair.^' 
The  duty  extends,  however,  only  to  keeping  a  house  wind  and  water 
tight,^^  and  he  is  not  liable  for  deteriorations  resulting  from  or- 
dinary wear  and  tear,^®  nor  when  the  premises  are  accidentally 
burned  down.^®     Failure  to  repair  constitutes  permissive  waste.** 

Smith,  63  111.  430;  Avery  v.  Dougherty,  102  Ind.  443,  2  N.  B.  123.  But  see 
Bennet  v.  Bittle,  4  Rawle  (Pa.)  338. 

7  4  stubbs  V,  Parsons,  3  Barn.  &  Aid.  516;  Watson  v.  Atkins,  Id,  647.  If 
the  lessor  fails  to  do  so,  the  lessee  may  pay  them,  to  prevent  the  loss  of  his 
estate,  and  deduct  the  amount  from  the  rent.  McPherson  v.  Atlantic  &  P. 
R.  Co.,  66  Mo.  103. 

7  0  Reeves  v.  McComeskey,  168  Pa.  St.  571,  32  Ati.  96;  Blake  v.  Dick,  15 
Mont.  236,  38  Pac.  1072;  Doyle  v.  Railway  Co.,  147  U.  S.  413,  13  Sup.  Ct.  333; 
Jaffe  V.  Harteau,  56  N.  Y.  398;  Fisher  v.  Lighthall,  4  Mackey  (D.  C.)  82; 
Lucas  V.  Coulter,  104  Ind.  81,  3  N.  E.  622;  Blake  v.  Ranous,  25  111.  App. 
486;  Stevens  v.  Pierce,  151  Mass.  207,  23  N.  E.  1006.  But  the  rule  is  other- 
wise when  lodgings  or  furnished  houses  are  let.  Smith  v.  Marrable,  11 
Mees.  &  W.  5.     But  see  Fisher  v.  Lighthall,  4  Mackey  (D.  C.)  82. 

7  6  Demarest  v.  Willard,  8  Cow.  (N.  Y.)  206;  Shelby  v.  Heame,  6  Yerg. 
(Tenn.)  512;  Pollard  v.  Shaffer,  1  Dall.  210;  U.  S.  v.  Bostwiek,  t)4  U.  S.  53; 
Miller  v.  Shields,  55  Ind.  71;  Turner  v.  Townsend,  42  Neb.  376,  60  N.  W.  587. 
The  lessor  is  never  bound  to  repair  unless  there  is  a  stipulation  to  that  effect. 
Nor  must  he  rebuild  a  house,  if  it  bums  down,  without  a  covenant  to  do  so. 
Sheets  v.  Selden,  7  Wall.  423;  Leavitt  v.  Fletcher,  10  Allen  (Mass.)  121;  Gill 
V.  Middleton,  105  Mass.  478;  Doupe  v.  Gerrin,  45  N.  Y.  119;  Little  v.  Ma- 
cadaras,  29  Mo.  App.  332,  38  Mo.  App.  187;  Heintze  v.  Bentley,  34  N.  J.  Eq. 
562;  Medary  v.  Gathers,  161  Pa.  St.  87,  28  Atl.  1012;  Cowell  v.  Lumley,  39 
Cal.  151;  Jones  v.  Millsaps,  71  Miss.  10,  14  South.  440.  The  duty  is  imposed 
by  statute  in  several  states.  1  Stim.  Am.  St.  Law,  §  2041;  2  Shars.  &  B.  Lead. 
Gas.  Real  Prop.  94. 

7  7  Parrott  v.  Barney,  Deady,  405,  Fed.  Gas.  No.  10,773a;  Kastor  v.  New- 
house,  4  E.  D.  Smith  (N.  Y.)  20;  Auworth  v.  Johnson,  5  Car.  &  P.  239. 

7  8Torriano  v.  Young,  6  Car.  &  P.  8. 

7  9  Eagle  V.  Swayze,  2  Daly  (N.  Y.)  140.  And  see  Payne  v.  James,  45  La. 
Ann.  381,  12  South.  492.  Cf.,  however,  Peck  v.  Manufacturing  Co.,  43  111.  App. 
360. 

80  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  408;  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  980; 
Iiothrop  V.  Thayer,  138  Mass.  466,  and  cases  cited. 


140  ESTATES    A3    TO    QUANTITY LESS    THAN    FREEHOLD.  (Cb.   7 

There  is  also  an  implied  covenant  to  cultivate  in  a  husbandmanlike 
manner."  But  covenants  to  pay  taxes,"  to  insure,  or  not  to  as- 
sign  are  never  implied." 

Same — Bent.^ 

A  valid  term  of  years  may  be  created  without  the  reservation  of 
a  rent.*"  But  whenever  a  rent  is  reserved  there  is  an  implied  cove- 
nant on  the  part  of  the  lessee  to  pay  it  whether  he  ever  take  pos- 
session or  not.*'  And,  where  there  is  an  express  covenant  to  pay, 
a  destruction  of  the  demised  premises  will  not  relieve  him.*^  But 
when  the  tenant  is  evicted  from  part  or  all  of  the  premises  by  a 
title  paramount,  his  liability  for  rent  ceases  in  proportion.**  And 
when  he  is  evicted  by  the  landlord  even  from  a  part,  the  whole  lia- 

81  Walker  v.  Tucker,  70  111.  527;  Aughlnbaugh  v.  Coppenheffer,  55  Pa.  St, 
347;  Powley  v.  Walker,  5  Term  R.  873;  Legh  v.  Hewitt,  4  East,  154;  Dalby 
V.  Hirst,  3  Moore,  C.  P.  536. 

82  Except  by  statute.     1  Stim.  Am.  St.  Law,  §  2042. 

8  8  1  Wood,  Landl,  &  Ten.  (2d.  Ed.)  701,  709;  2  Wood,  Landl.  &  Ten.  (2d  Ed.) 
954;  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  398,  477,  479;  Church  v.  Brown,  15  Ves. 
258. 

84  For  rent  as  an  incorporeal  hereditament,  see  post,  p.  375, 

8  6  Sherwin  v.  Lasher,  9  111.  App.  227;  Hunt  v.  Comstock,  15  Wend.  (N.  Y.) 
665.  Cf.  Hooton  v.  Holt,  139  Mass.  54,  22  N.  E.  221;  Osborne  v.  Humphrey, 
7  Conn.  335.  If  no  rent  is  reserved,  there  may  be  a  recovery  for  use  aud 
occupation,  according  to  the  real  value  of  the  premises,  unless  a  contrary  in- 
tention of  the  parties  is  shown.  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  434;  2  Wood, 
Landl.  &  Ten.  (2d  Ed.)  1328. 

8  8  McGlynn  v.  Brock,  111  Mass.  219;  Mechanics'  &  Traders'  Fire  Ins.  Co.  v. 
Scott,  2  Hilt.  (N.  Y.)  550;    McMurphy  v.  Minot,  4  N.  H.  251. 

*i  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  436;  Peck  v.  Ledwidge,  25  IIL  93;  Hallett 
V.  Wylie,  3  Johns.  (N.  Y.)  44;  Fowler  v.  Bott,  6  Mass.  63;  French  v.  Richards, 
6  Phila.  (Pa.)  547;    Holtzapffel  v.  Baker,  18  Ves.  115. 

88  Frommer  v.  Roessler  (Com.  PI.)  33  N.  Y.  Supp.  13;  Lansing  v.  Van  Al- 
stj-ne,  2  Wend.  (N.  Y.)  561;  Carter  v.  Burr,  39  Barb.  (N.  Y.)  59;  Fillebrown 
v.  Hoar,  124  Mass.  580;  Stevenson  v.  Lambard,  2  East  575;  Friend  v.  Supply 
Co.,  165  Pa.  SL  052,  30  Atl.  1134.  Cf.  M'Loughlin  v.  Craig,  7  Ir.  Com.  Law, 
117;  Folts  v.  Huntley,  7  Wend.  (N.  Y.)  210;  Morse  v.  Goddard,  13  Mete. 
(Mass.)  177;  Big  Black  Creek  Imp.  Co.  v.  Kemmerer,  102  Pa.  St.  422,  29  Atl. 
739;  Sylvester  v.  Hall,  47  111.  App.  304.  But  see  Ray  v.  Johnson,  98  Mich. 
84,  56  N.  W.  1048;   Miller  v.  Maguire,  IS  U.  1.  770,  30  Atl.  966. 


§    82)  RIGHTS    AND    LIABILITIES  -OF    LANDLORD    AND    TENANT.  141 

bility  for  rent  is  at  an  end.*'     It  is  customary  to  reserve  a  right  of 
re-entry  for  nonpayment  of  rent."" 

S2.  EIGHTS  INDEPENDENT  OF  COVENANTS— As  inci- 
dents of  the  relation,  and  independent  of  any  cov- 
enants, the  parties  have  the  follo^wing  rights: 

(a)  The  landlord  has   a  right  to   protect  the  reversion 

(p.  141). 

(b)  The  tenant  is  entitled  to  exclusive  possession  (p.  142). 

(c)  He  may  take  estovers  (p.  143). 

(d)  He  is  entitled  to  emblements  -when  his  estate  is  cut 

off  by  some  contingency,  without  his  fault  (p.  143). 

(e)  He  is  liable  for  waste  (p.  143). 

(f)  The  lessee,  and  all  persons  claiming  under  him,  are 

estopped  to  deny  the  lessor's  title  (p.  143). 

(g)  The  landlord  may  distrain  for  rent  (p.  145). 

Although  the  rights  and  liabilities  of  the  parties  to  a  lease  are 
ifixed  to  a  large  extent  by  the  terms  thereof,  there  are  some  which 
exist  by  virtue  of  the  relation  of  landlord  and  tenant     There  is  a 

«»  Coulter  V.  Norton,  100  Mich.  389,  59  N.  W.  163;  Snow  v.  Pulitzer,  142  N. 
Y.  263,  36  N.  E.  1059;  Morris  v.  KetUe  (N.  J.  Sup.)  80  AU.  879;  City  Power 
Co.  V.  Fergus  Falls  Water  Co.,  55  Minn.  172,  56  N.  W.  G85,  1006;  Leishman  v. 
White.  1  Allen  (Mass.)  489;  Christopher  v.  Austin,  11  N.  Y.  216;  Graham  v. 
Anderson,  3  Har.  (Del.)  364;  Bennet  v.  Bittle,  4  Rawle  (Pa.)  339;  Lewis 
T.  Payn,  4  Wend.  (N.  Y.)  423;  Colbum  v.  Morrill,  117  Mass.  262;  Day  v. 
Watson,  8  Mich.  535;  Smith  v.  Stigleman,  58  111.  141;  Pendleton  v.  Dyett,  4 
Cow.  (N.  Y.)  581;  Neale  v.  Mackenzie,  1  Mees,  &  W.  747;  Cibel  and  Hill's 
Case,  1  Leon.  110;  Burn  v.  Phelps,  1  Starkle,  ^;  Morrison  v.  Chad  wick,  7  O. 
B.  266;  McClurg  v.  Price,  59  Pa.  St.  420.  See,  also,  Grabenhorst  v.  Nicodemus. 
42  Md.  236.  See,  also,  Royce  v.  Guggenheim,  106  Mass.  201;  Hoeveler  v.  Flem- 
ing, 91  Pa.  St.  322.  But  cf.  Smith  v.  Raleigh,  3  Camp,  513;  Roper  v.  Lloyd,  T. 
Jones,  148;  Carrel  v.  Read,  Cro.Eliz.  374;  Don-el  v.  Andrews,  Hub.  190;  Paradine 
V.  Jane,  Aleyn,  26;  Ecclesiastical  Com'rs  v.  O'Connor,  9  Ir.  Com.  Law,  242; 
Lawrence  v.  French,  25  Wend.  (N.  Y.)  443;  McKenzie  v.  Hatton,  141  N.  Y.  6, 
85  N.  E.  929;  Ogilvie  v.  Hull,  5  HiU  (N.  Y.)  52;  Edgerton  v.  Page,  20  N.  Y. 
281;  De  Witt  v.  Pierson,  112  Mass.  8;  Townsend  v.  Wharf  Co.,  117  Mass.  501. 

0  0  When  no  right  of  re-entry  is  reserved,  the  landlord's  only  remedy  for  a 
breach  of  covenant  is  an  action  for  damages.  Brown  v.  Kite,  2  Overt  (Tenn.) 
533;   Den  v.  Post,  25  N.  J.  Law,  285.    And  see  post,  p.  150. 


142  ESTATKS    AS    TO    QUANTITY LESS    THAN    FRKEUOLD.  (Ch.   7" 

tenure  existing  between  tliem,  the  tenant  holding  of  the  landlord^ 
and  paying  rent  in  return  for  the  use  of  the  land.  Of  the  right* 
growing  out  of  this  tenure,  we  need  mention  only  the  right  of  the 
landlord  to  protect  the  reversion  by  maintaining  actions  for  acts 
which  cause  a  permanent  injury  to  the  premises,"^  and  that  he 
may  be  liable  to  strangers  for  injuries  resulting  from  the  dan- 
gerous condition  of  the  premises  at  the  time  the  lease  was  exe- 
outed.^^  The  tenant  has  a  right  to  exclusive  possession,®^  which 
includes  the  right  to  enjoy  all  easements  "*  servient  to  the  demised 

»i  Slarr  v.  Jackson,  11  Mass.  519;  French  v.  Fuller,  23  Pick.  (Mass.)  104; 
Little  v.  Palister,  3  Greenl.  (Me.)  6;  Austin  v.  Railroad  Co.,  25  N.  Y.  334; 
Ay  cock  V.  Railroad  Co.,  89  N.  C.  321;  Mayor,  etc.,  of  Cartersville  v.  Lyon,  69' 
Ga.  577;  Jesser  v.  Gifford,  4  Burrows,  214i;  Gulf,  C.  &  S.  F.  Ry.  Co.  t. 
.Smith,  3  Tex.  C^v.  App.  483,  23  S.  W.  89;  Missouri,  K.  &  T.  Ry.  Co.  v.  Ful- 
more  (Tex.  Civ,  App.)  26  S.  W.  238.  But  see  Anthony  v.  Railway  Co.,  162 
Mass.  60,  37  N.  E.  780. 

»2  Bellows  V.  Sackett,  15  Barb.  (N.  Y.)  96;  Moody  v.  Mayor,  etc.,  43  Barb. 
(N.  Y.)  282;  City  of  Peoria  v.  Simpson,  110  111.  294;  Reichenbacher  v.  Pah- 
lueyer,  8  111.  App.  217;  Marshall  v.  Heard,  59  Tex.  206;  Todd  v.  Flight,  9 
0.  B.  (N.  S.)  377;  City  of  Denver  v.  Soloman,  2  Colo.  App.  534,  31  Pac.  507. 
So  the  landlord  may  be  liable  to  the  tenant  for  injuries,  where  the  former 
retains  control  of  part  of  the  tenement.  Elliott  v.  Pray,  10  Allen  (Mass.) 
378;  Watkins  v.  Goodall,  138  Mass.  533;  Alston  v.  Grant,  3  El.  &  Bl.  128; 
Phillips  V.  Ehrmann  (City  Ct.  Brook.)  28  N.  Y.  Supp.  519;  Payne  v.  Irvin, 
144  111.  482,  33  N.  E.  756;  Davis  v.  Power  Co.,  107  Cal.  563,  40  Pac.  950;  Mon- 
tieth  V.  Finkbelner,  66  Hun,  633,  21  N.  Y.  Supp.  288;  PhiUips  v.  Library 
Co.,  55  N.  J.  Law,  307,  27  Atl.  478;  Brunker  v.  Cummins,  133  Ind.  443,  32 
N.  E.  732.  But  see  Moynihan  v.  Allyn,  162  Mass.  276,  38  N.  E.  497;  Free- 
man V.  Hunnewell,  163  Mass.  210,  39  N.  E.  1012;  McLean  v.  Warehouse  Co., 
158  Mass.  472,  33  N.  E.  499;  Daley  v.  Quick,  99  Gal.  179,  33  Pac.  859.  The 
tenant,  while  he  has  control  of  the  premises,  is  liable  to  strangers  for  neg- 
ligence. Stickney  v.  Munroe,  44  Me.  195;  Pickard  v.  Collins,  23  Barb.  (N.  Y.) 
4-t4;  Payne  v.  Rogers,  2  H.  Bl.  349;  Anheuser-Busch  Brewing  Ass'n  v.  Pe- 
terson, 41  Neb.  897,  60  N.  W.  373;  Lee  v.  McLaughlin,  86  Me.  410,  30  AtL 
65.  So  he  may  be  liable  to  the  landlord  for  Injury  to  the  premises.  Ste- 
vens V.  Pantlind,  95  Mich.  145,  54  N.  W.  716;  Wilcox  v.  Gate,  65  Vt  478, 
26  Atl.  1105;    Olsen  v.  Webb.  41  Neb.  147,  59  N.  W.  520. 

8  3  Kansas  Inv.  Co.  v.  Carter,  160  Mass.  421,  36  N.  E.  63;  Phelps  v.  Ran- 
dolph, 147  111.  335,  35  N.  E.  243.  And  see  Bentley  v.  City  of  Atlanta,  92  Ga. 
623,  18  S,  E.  1013.  Any  right  of  re-entry  In  the  lessor  Is  entirely  a  reserved 
right.  Heermance  v.  Vernoy,  6  Johns.  (N.  Y.)  5;  Dixon  v.  Clow,  24  Wend» 
(N.  Y.)  188;    Parker  v.  Griswold,  17  Conn.  288;    State  v.  Piper,  89  N.  C.  551. 

»*  See  post,  p.  349. 


§    82)  RIGHTS    AND    LIABILITIES    OF   LANDLORD    AND    TENANT.  143 

premises."  He  is  entitled  to  estovers,"  but  not  to  emblements,*^ 
unless  his  interest  is  terminated,  without  his  fault,  by  some  con- 
tingency happening  during  the  term."  If  he  causes  a  forfeiture, 
his  subtenant  is  entitled  to  emblements.'*  A  lessee  is  liable  for 
waste  committed  either  by  himself  ^°°  or  another.^"^  But  he  may 
remove  his  chattel  fixtures  without  any  express  permission  in  the 
lease.^" 

Estoppel  to  Deny  Lessor's  Title. 

A  lessee  is  estopped  to  deny  his  lessor's  title,^°*  and  the  estoppel 
extends  to  all  claiming  under  the  lessee.'"*     It  can  be  set  up  by  the 

9B  Crook  V.  Hewitt.  4  Wash.  749,  31  Pac.  2S.  And  see  Marsh  v.  McNider, 
88  Iowa,  390,  55  N.  W.  469.  The  tenant  is  bound  by  any  easements  to 
which  the  land  is  subject.  McDermott  v.  Raih-oad  Co.,  28  Hun  (N.  Y.)  325; 
Prescott  V.  White,  21  Picli.  (Mass.)  342. 

»6  Hubbard  v.  Shaw,  12  Alien  (Mass.)  120;  Walters  v.  Hutchlns'  Adm'x, 
29  Ind.  136;    Harris  v.  Goslin,  3  Har.  (Del.)  340. 

97  Carney  v.  Mosher,  97  Mich.  554,  56  N.  W.  935;  Gossett  v.  Drydale,  48 
Mo.  App.  430;  Baker  v.  Mclnturff,  49  Mo.  App.  505;  Maclary  v.  Turner,  9 
Houst.  (Del.)  281,  32  Atl.  325;  Monig's  Adm'x  v.  Phillips  (Ky.)  29  S.  W.  970. 
And  see  1  Stim.  Am.  St.  Law,  §  2064. 

»8  Gray  v.  Worst,  129  Mo.  122,  31  S.  W.  585;  Munday  v.  O'Neil  (Neb.)  63 
N.  W.  32;    Hubbard  v.  Berry,  10  Ind.  App.  594,  38  N.  E.  77. 

«»  Bevans  v.  Briscoe,  4  Har.  &  J.  (Md.)  139.  But  see  Samson  v.  Rose,  65 
N.  Y.  411.  They  cannot  be  claimed  by  a  mortgagee  of  the  lessee.  Gregg 
V.  Boyd,  69  Hun,  588,  23  N.  Y.  Supp.  918.  And  one  holding  an  estate  for 
years  as  lessee  of  a  tenant  for  life  may  claim  emblements.  Dorsett  v. 
Gray,  98  Ind.  273;  Bevans  v.  Briscoe,  4  Har.  &  J.  (Md.)  139;  Marshall,  J., 
in  Miller  v.  Shackleford,  4  Dana  (Ky.)  277. 

100  Thorndike  v.  Burrage,  111  Mass.  531;  Nave  v.  Berry,  22  Ala.  382;  Fen- 
ton  V.  Montgomery,  19  Mo.  App.  156;  Brooks  v.  Rogers,  101  Ala.  Ill,  13 
South.  386. 

101  Cook  V.  Transportation  Co.,  1  Denio  (N.  Y.)  91;  Wood  v.  Griffin,  46  N. 
H.  230;    Donald  v.  Elliott  (Cir.  Ct.)  32  N.  Y.  Supp.  821. 

102  Mason  v.  Fenn,  13  111.  525;  Moore  v.  Wood,  12  Abb.  Prac.  (N.  Y.)  393; 
Bircher  v.  Parker,  40  Mo.  118;  Chandler  v.  Oldham,  55  Mo.  App.  139;  and 
ante,  p.  19.  Cf.  Davidson  v.  Manufacturing  Co.,  99  Mich.  501,  58  N.  W.  475; 
PendlU  v.  Maas,  97  Mich.  215,  56  N.  W.  597;  Wright  v.  Maedonnell,  88  Tex. 
140,  30  S.  W.  907;  Goedeke  v.  Baker  (Tex.  Civ.  App.)  28  S.  W.  1039. 

108  Wolf  V.  Holton  (Mich.)  62  N.  W.  174;  Gray  v.  Johnson,  14  N.  H.  414; 
Pope  V.  Harkins,  16  Ala.  321;    Hamilton  v.  Pittock,  158  Pa.  St,  457,  27  Atl. 


104  See  note  104  on  following  page. 


144  ESTATES    AS    TO    QUANTITY LESS    THAN    FREEHOLD.  (Ch.   7 

heirs  or  assignees  of  the  lessor/""  but  the  lessee  can  controvert  the 
fact  of  an  assignment.^**'  So,  against  the  heir,  he  may  show  that 
the  reversion  was  devised  to  a  third  person. ^°^  Against  the  les- 
sor, he  may  show  that  the  latter  has  parted  with  his  interest  since 
making  the  lease,****  for  the  lessee  may  have  purchased  the  rever- 
sion from  the  lessor,""  or  have  paid  the  rent  to  the  lessor's  as- 
signee."" But  he  cannot  assert  an  outstanding  title  which  he  has 
bought  in,"*  nor  can  he  accept  a  lease  from  a  stranger."'     How- 

1079;  Sexton  v.  Carley,  147  111.  269,  35  N.  E.  411;  Knowles  v.  Murphy  (Cal.) 
40  Pac.  Ill;  McKisslck  v.  Asbby,  98  Cal.  422,  33  Pac.  729;  Delaney  v.  Fox, 
2  C.  B.  (N.  S.)  768;  Voss  v.  King,  38  W.  Va.  607,  18  S.  E.  762;  Dixon  v. 
Stewart,  113  N.  C.  410,  18  S.  E.  325;  Hackett  v.  Marmet  Co.,  3  C.  C.  A.  76, 
52  Fed.  268.  But  see  Lakin  v.  Dolly,  53  Fed.  333;  Chicago  &  A.  R.  Co.  v. 
Keegan,  152  111.  413,  39  N.  E.  33;  Welder  v.  McComb  (Tex.  Civ.  App.)  30  S. 
W.  822;  McKlnnis  v.  Mortgage  Co.,  55  Kan.  259,  39  Pac.  1018;  Suddarth 
V.  Robertson,  118  Mo.  286,  24  S.  W.  151.  The  rule  has  been  extended  to  ad- 
joining lands  gained  by  the  tenant  by  disseisin.  Doe  v.  Jones,  15  Mees.  & 
W.  580;  Doe  v.  Rees,  6  Car.  &  P.  610;  Andrews  v.  Halles,  2  El.  &  Bl.  349. 
The  old  common-law  rule  that  a  disclaimer  of  the  landlord's  title  would 
cause  a  forfeiture  Is  no  longer  the  law.  Fusselnaac  v.  Worthlngton,  14  111. 
135;  Newman  v.  Rutter,  8  Watts  (Pa.)  51;  Greeno  v.  Munson,  9  Vt.  37; 
Jackson  v.  Vincent,  4  Wend.  (N.  Y.)  633.  But  see  Newman  v.  Rutter,  8 
"Watts  (Pa.)  51.  Refusal  to  pay  rent  will  not  cause  a  forfeiture.  Doe  v. 
Wells,  10  Adol.  «&  E.  427;    Kiernan  v.  Terry,  26  Or.  494,  38  Pac.  671. 

104  Rose  v.  Davis,  11  Cal.  133;  Russell  v.  Ei-wln's  Adm'r,  38  Ala,  44.  50; 
Derrick  v.  Luddy,  64  Vt.  402,  24  Atl.  1050;  McLennan  v.  Grant,  8  Wash.  603, 
36  Pac.  682.     Cf.  Swan  v.  Busby,  5  Tex.  Civ.  App.  63,  24  S.  W.  303. 

106  Blantln  v.  Whitaker,  11  Humph.  (Tenn.)  313;  Russell  v.  Allard,  18  N. 
H.  225;    State  v.  Votaw,  13  Mont.  403,  34  Pac.  315. 

10  6  Despard  v.  Walbridge,  15  N.  Y.  377;  Beall  v.  Davenport,  48  Ga.  165. 

lOT  Despard  v.  Walbridge,  15  N.  Y.  377.  And  see  Lane  v.  Young,  66  Hun, 
503,  21  N.  Y.  Supp.  838. 

108  Wolf  V.  Johnson,  30  Miss.  513;  Horner  v.  Leeds,  25  N.  J.  Law,  106; 
Robinson  v.  Mining  Co.,  55  Mo.  App.  662;  Winn  v.  Strickland,  34  Fla.  610, 
16  South.  606;  Robertson  v.  Biddell,  32  Fla.  304,  13  South.  358;  West  Shore 
Mills  Co.  V.  Edwards,  24  Or.  475,  33  Pac.  987. 

109  Elliott  V.  Smith,  23  Pa.  St.  131;  George  v.  Putney,  4  Cush.  (Mass.)  355; 
Camley  v.  Stanfield,  10  Tex.  546. 

110  Stedman  v.  Gassett,  18  Vt.  346;  Welch  v.  Adams,  1  Mete.  (Mass.)  494; 
Magill  V.  Hinsdale,  6  Conn.  4G4. 

111  Sharpe  v.  Kelley,  5  Denio  (N.  Y.)  431;   Drane  v.  Gregory's  Heirs,  3  B. 


11 »  See  note  112  on  following  page. 


§   82)  RIGHTS   AND    LIABILITIES    OF    LANDLORD    AND    TENANT.  145 

ever,  if  there  is  an  eviction  under  a  paramount  title,  the  tenant 
may  take  a  new  lease  from  the  holder  of  such  title,  and  it  is  not 
necessary  that  he  be  actually  expelled  from  the  premises,  to  jus- 
tify hira  in  so  doing.  It  is  sufficient  if  the  right  to  evict  is  as- 
serted by  one  entitled  to  the  possession,  and  the  tenant  in  good 
faith  accepts  a  new  lease  to  avoid  eviction.^^* 

Distress  far  Rent. 

At  common  law  the  landlord  has  a  remedy,  called  "distress."  ''* 
for  enforcing  the  payment  of  rent,  by  seizing  personal  property 

Mon.  (Ky.)  619;  Elliott  v.  Smith,  23  Pa.  St.  131;  Morley  v.  Rodgers,  5  Yerg, 
(Tenn.)  217;  Anderson  v.  Anderson,  104  Ala.  428,  16  South.  14.  And  see 
Barlow  v.  Dahm,  97  Ala.  414,  12  South.  293. 

112  Doe  V.  Reynolds,  27  Ala.  364,  376;  Russell  v.  Fabyan,  34  N.  H.  223; 
Ragor  V.  McKay,  44  111.  App.  79,  But  see  Nash  v.  Springstead,  72  Hun, 
474,  25  N.  Y.  Supp.  279. 

118  Morse  v.  Goddard,  13  Mete.  CMass.)  177:  Simers  v.  Saltus,  3  Denlo 
(N.  Y.)  217.     And  see  Delaney  v.  Fox,  2  C.  B.  (N.  S.)  775. 

11*  The  other  remedies  of  the  lessor  can  only  be  enumerated.  For  rent, 
they  are:  Debt,  Bordman  v.  Osbom,  23  Pick.  (Mass.)  295;  Allen  v.  Bryan,  5 
Barn.  &  C.  512;  assumpsit,  Smith  v.  Stewart,  6  Johns.  (N.  Y.)  46;  Chambers 
V.  Ross,  25  N.  J.  Law,  293;  Brolasky  v.  Ferguson,  48  Pa.  St.  434;  covenant. 
Gale  V.  Nixon,  6  Oow.  (N.  Y.)  445;  Saltoun  v.  Houstoun,  1  Bing.  4.38;  or  bill 
in  equity,  Lawrence  v.  Hammett,  3  J.  J.  Marsh.  (Ky.)  287;  Livingston's  Ex'rs 
V.  Livingston,  4  Johns.  Ch.  (N.  Y.)  287;  North  v.  Strafford.  3  P.  Wms.  148. 
For  waste,  are  actions  to  prevent,  Watson  v.  Hunter,  5  Johns.  Ch.  (N.  Y.)  1(!9; 
and  for  damages,  Harder  v.  Harder,  26  Barb.  (N.  Y.)  409;  Queen's  College  v. 
Hallett,  14  East,  489;  AttersoU  v.  Stevens,  1  Taunt  196.  To  recover  posses- 
sion, are  ejectment,  Jackson  v.  Brownson,  7  Johns.  (N.  Y.)  227;  Penn  v. 
DiveUin,  2  Yeates  (Pa.)  309;   Cobb  v.  Lavalle,  89  111.  331;   Colston  v.  McVay, 

1  A.  K.  Marsh.  (Ky.)  251;  and  summary  proceeding  given  by  statute  in  most 
states.  Fratcher  v.  Smith  (Mich.)  62  N.  W.  832;  Lewis  v.  Sheldon,  103  IMifh. 
102,  61  N.  W.  269;  Marsters  v.  Cling,  163  Mass.  477,  40  N.  E.  763.  The  losspe's 
actions  are:  Replevin,  for  wrongful  distress.  Hunter  v.  Le  Conte,  6  C\)w.  (N. 
Y.)  728;  trespass,  for  interference  with  his  possession,  Taylor  v.  Cooper  (Mich.) 
62  N,  W.  157;  Hey  v,  Moorhouse,  8  Scott,  156;  Van  Brunt  v.  Sclienck.  11 
Johns.  (N.  Y.)  385;  Lunt  v.  Brown,  13  Me.  236;  case,  for  excessive  distress. 
Hare  v.  Stegall,  60  111.  380  (and  see  Fishburne  v.  Engledove,  91  Va.  5-18,  22 
S.  E.  354);  and  covenant,  2  Taylor,  Landl.  &  Ten.  (8th  Ed.)  260.  For  the  ac- 
tion of  forcible  entry  and  detainer,  see  2  Tayl.  Landl.  &  Ten.  (8th  Ed.)  396; 

2  Wood.  Landl.  &  Ten.  (2d  Ed.)  1374;  Willard  v.  Wanen,  17  Wend.  (N.  Y.) 
257;  Toby  v.  Schultz,  51  111.  App.  487;  and  post,  p.  1G5. 

REAL  PROP. —10 


146  ESTATES    AS    TO    QUANTITY — LESS   THAN    FREEHOLD.  (Ch.   7 

found  on  the  demised  premises.^^'  This  remedy  exists  in  some  of 
our  states,""  while  in  maiiy  others  it  is  incorporated  into  the  law 
of  attachments  and  liens."^  It  lies  for  all  rents  reserved  which 
are  certain."*  The  distraint  may  be  made  by  the  lessor,  or  the 
assignee  of  the  reversion,  for  all  the  rent  due.^^'  It  is  now  re- 
quired, in  most  states,  that  the  warrant  be  executed  by  a  legal 
officer.^^°  At  common  law,  any  chattels  ^^^  found  upon  the  prem- 
ises could  be  distrained,  whether  belonging  to  the  tenant,  or  to 
others,^''"  though  exception  was  made  in  favor  of  goods  brought 
there  in  course  of  trade.^^'  The  tendency  of  modern  decisions 
and  statutes  is  to  restrict  the  right  of  distraining  to  the  property 
of  the  lessee.^  ^*  There  is  a  right  to  sell  the  goods  taken,  if  they 
are  not  redeemed  within  the  time  fixed  by  the  statutes.^"' 

118  2  Tayl.  Landl.  &  Ten.  (8th  Ed.)  1G8;  2  Wood,  Landl.  &  Ten.  (2d  Ed.) 
1305;  Newman  v.  Anderton,  2  Bos.  &  P.  (N.  R.)  224.  Gf.  Beeszard  v.  Capel, 
8  Barn.  &  C.  141 ;  Preseott  v.  Boucher,  3  Barn.  &  Adol.  849. 

116  2  Tayl.  Landl.  &  Ten.  (Sth  Ed.)  170. 

iiT  See  1  Stim,  Am.  St.  Law,  §§  2031-2036.  And  see  Willard  v.  Rogers, 
54  111.  App.  583;  Rogers  v.  Grigg  (Tex.  Civ.  App.)  29  S.  W.  654;  Belser  v. 
Youugblood,  103  Ala.  545,  15  South.  863;  Manhattan  Trust  Co.  v.  Sioux  City 
&  M.  Ry.  Co.,  68  Fed.  72;  Smith  v.  Dayton  (Iowa)  62  N.  W.  650;  Toney  v. 
Goodley,  57  Mo.  App.  235;    Ballard  v.  Johnson,  114  N.  O.  141,  19  S.  E.  98. 

118  Stewart  v.  Gregg,  42  S.  C.  392,  20  S.  E.  193.  Cf.  Tutter  v.  Fryer,  Winch, 
7;    Paxton  v.  Kennedy,  70  Miss.  865,  12  South.  546. 

119  Slocum  V.  Clark,  2  Hill  (N.  Y.)  475;  Lathrop  v.  Clewis,  63  Ga.  282.  But 
not  by  executor  for  rent  accruing  in  decedent's  lifetime.  Preseott  v.  Bouch- 
er. 3  Barn.  &  Adol.  849.  Cf.  —  v.  Cooper,  2  Wils.  375;  Parmenter  v.  Web- 
ber, 8  Taunt.  593. 

120  For  the  details  and  procedure  the  student  must  consult  the  statutes  of 
his  state. 

121  Unless  of  a  perishable  nature.  Morley  v,  PIncombe,  2  Exch.  101.  And 
see  Van  Sickler  v.  Jacobs,  14  Johns.  (N.  Y.)  434. 

122  2  Wood,  Landl.  &  Ten.  (2d  Ed.)  1310;  Blanche  v.  Bradford,  38  Pa.  St. 
344;  Spencer  v.  McGowen,  13  Wend.  (N.  Y.)  256.  And  see  Paine  v.  Lock 
Co.,  64  Miss.  175,  1  South.  56;    Davis  v.  Payne's  Adm'r,  4  Rand.  (Va.)  332. 

123  Brown  v.  Stackhouse,  155  Pa.  St.  582,  26  Atl.  669;  Cadwalader  v.  Tin- 
dall,  20  Pa.  St,  422;  Knowles  v.  Pierce,  5  Houst.  (Del.)  178;  Block  v.  La- 
tham, 63  Tex.  414. 

124  2  Tayl.  Landl.  &  Ten.  (Sth  Ed.)  197;  Connah  v.  Hale,  23  Wend.  (N.  Y.) 
475;    Peacock  v.  Purvis,  2  Brod.  &  B.  362. 

12  5  2  Wood,  Landl.  &  Ten.  (2d  Ed.)  1322;  2  TayL  Landl.  &  Ten.  (8th  Ed.) 
214.     The  right  to  sell  was  first  given  by  the  statute  of  2  W.  &  M.  c.  5. 


§   83)  TRANSFER    OF    ESTATES    FOR    YEARS.  147 


SAME— TRANSFER  OF  ESTATES  FOR  YEARS. 

83.  After  an  estate  for  years  has  been  created,  the  inter- 
erests  of  the  parties  are  transferable.  The  transfer 
may  be: 

(a)  By  act  of  parties,  as  -where : 

(1)  The  lessor  assigns  the  rent  or  the  reversion,  or 

both  (p.  147). 

(2)  The  lessee  (p.  148) 

(I)  Assigns  his   term,  in  which   case  the  as- 

signee is  liable  on  all  covenants  running 
■with  the  land. 

(II)  Sublets  his  term,  in  which  case  the  sub- 

lessee is  liable  only  to  the  sublessor. 

(b)  By  operation  of  law,  as  where  (p.  149): 

(1)  The  interest  of  either  party  is  taken  on  execu> 

tion. 

(2)  On  the  lessor's  death,  his  interest  goes  to  his 

heirs  or  devisees. 
(8)  On  the  lessee's   death,  his  interest  goes   to  his 
personal  representative. 

Transfer  hy  Lessor. 

Unless  restrained  by  express  covenants,^'"  either  the  lessor  or 
the  lessee  may  transfer  his  interest  under  a  lease.^*^  The  require- 
ments of  the  statute  of  frauds  are  the  same  for  an  assignment  or 
a  subletting  as  for  the  original  lease.^^*  An  assignee  of  the  re- 
version is  entitled  to  receive  the  rents  from  the  tenant  after  giv- 
ing notice  of  the  assignment.^'^'     Such  assignee  can  enforce,  and 

126  Or  by  statute,  as  lessee  is  in  a  few  states.  1  Stim.  Am.  St.  liaw,  § 
2043;    2  Shars.  &  B.  Lead.  Cas.  Real  Prop.  83. 

HT  Dixon  V.  Buell,  21  111.  203;  Webster  v.  Nichols,  104  111.  160;  Crommelin 
V.  Thiess,  31  Ala.  412,  421;  WoodhuU  v,  Rosenthal.  61  N.  Y.  3S2;  Gould  v. 
School  Dist.,  8  Minn.  427  (Gil.  382);  Indianapolis  Manufacturing  &  Carpen- 
ters' Union  v.  Cleveland,  C,  C.  &  I.  Ry.  Co.,  45  Ind.  2S1;  Rex  v.  Inhabitants 
of  Aldborough,  1  East,  597. 

J 28  Bedford  v.  Terhune,  30  N.  Y.  453. 

"»  Hunt  v.  Thompson,  2  Allen  (Mass.)  341;   O'Connor  v..  Kelly,  41  Cal.  432; 


148  ESTATES    A3    TO    QUANTITY LESS    THAN    FREEHOLD.  (Ch.  7 

{s  liable  on,  covenants  running  with  the  land.^'°  The  lessor  may 
assign  the  rent  to  one  man,  and  the  reversion  to  another,  or  he 
may  assign  one  and  keep  the  other.^*^  So,  too,  he  may  split  up 
the  reversion  into  parcels,  but  the  rent  cannot  be  made  payable  to 
several  without  the  consent  of  the  tenant.^'* 

Transfer  hy  Lessee. 

The  lessee  may  either  assign  or  sublet.^^'  If  the  interest  con- 
veyed by  him  is  for  a  shorter  time  than  his  own  term,  even  by  a 
day,  it  is  a  sublease;  ^'"^  aud  some  cases  hold  that  the  reservation 
by  the  original  lessee  of  a  right  of  entry  will  have  the  same  ef- 
fect.^ ^°     But  there  may  be  an  assignment  of  part  of  the  prem- 

Moffatt  V.  Smith,  4  N.  Y.  126;  Childs  v.  Clark,  3  Barb.  Ch.  (N.  Y.)  52;  Watson 
y,  Hunklns,  13  Iowa,  547;  Page  v.  Culver,  55  Mo.  App.  606.  Prior  to  the 
statute  of  4  Anne,  c.  16,  §  9  (which  has  been  generally  adopted  in  the  United 
States),  it  was  necessary  that  the  tenant  should  agree  to  accept  the  assignee 
of  the  reversion  as  his  landlord.  This  was  called  an  "attornment."  Fisher  v. 
Deering,  60  111.  114;  Burden  v.  Thayer,  3  Mete.  (Mass.)  76;  Tilford  v.  Flem- 
ing, 64  Pa.  St.  300;  Mortimer  v.  O'Reagan,  10  Phila.  (Pa.)  500.  But  see  Pox's 
Case,  S  Coke,  936.  Attornment  Is  not  now  necessary,  in  most  states.  2  Tayl. 
Landl.  &  Ten.  (8th  Ed.)  224;  1  Stim.  Am.  St.  Law,  §  2009;  Perrin  v.  Lepper, 
34  Mich.  292.  Contra,  Fisher  v.  Deering,  60  111.  114;  Duke  v.  Compton,  49 
Mo.  App.  304. 

ISO  Astor  V.  Miller,  2  Paige  (N.  Y.)  68;  Stevenson  v.  Lambard,  2  East,  575; 
Burton  v.  Barclay,  7  Bing.  745;  Van  Home  v.  Grain,  1  Paige  (N.  Y.)  4.55; 
Sutherland  v.  Goodnow,  108  111.  528;  Campbell  v.  Lewis,  3  Barn.  &  Aid.  392; 
JKJng  V.  Jones,  5  Taunt.  418. 

»3i  Co.  Litt  47a;  McMurphy  v.  Minot,  4  N.  H.  251;  Crosby  v.  Loop,  13  lU. 
025;  Dixon  v.  Nlccolls,  39  111.  372,  384;  Van  Rensselaer  v.  Hays,  19  N.  Y. 
68,  99;    Wineman  v.  Hughson,  44  111.  App.  22. 

182  Ryerson  v.  Quackenbush,  26  N.  J.  Law,  254;   Ards  v.  Watidn,  Cro.  Eliz. 

637. 

183  So  he  may  mortgage  his  interest.  Menger  v.  Ward,  87  Tex.  622,  30  S.  W. 
853.  And  see  Barrett  v.  Trainor,  50  III.  App.  420;  Drda  v.  Schmidt,  47  111. 
App.  267;  Menger  v.  Ward  (Tex.  Civ.  App.)  28  S.  W.  821.  Contra,  as  to  a 
lease  on  shares.  Lewis  v.  Sheldon,  103  Mich.  102,  61  N.  W.  269.  Assignment 
and  subletting  without  lessor's  consent  may  be  restrained  by  covenant.  Ray- 
mond V.  Hodgson,  55  111.  App.  423;  Shannon  v.  GrindstafC,  11  Wash.  536,  40 
Pac.  123. 

134  Post  V.  Kearney,  2  N.  Y.  394;  Collins  v.  Hasbrouck,  56  N.  Y.  157. 

18  6  Linden  v,  Hepburn,  3  Sandf.  (N.  Y.)  668;  People  v.  Robertson,  39  Barb. 
<>N.  Y.)  9;  Doe  v.  Bateman,  2  Barn.  &  Aid.  168.  And  see  1  Wood,  Landl.  & 
Ten.  (2d  Ed.)  178. 


I    83)  TRANSFER    OF    ESTATES    FOR    YEARS.  149 

ises.^""  In  the  case  of  a  sublease,  the  subtenant  is  not  liable  for 
rent  to  the  original  lessor,  or  on  the  covenants  of  the  oric^inal 
lease.^"  But  an  assignee  Is  liable  to  the  original  lessor  on  all 
the  covenants  which  run  with  the  land.^"  The  lessee  continues 
liable  after  he  has  assigned,  on  express  covenants.^"  But  an  as- 
signee may  avoid  future  obligation  by  assigning  over,  whether 
there  is  an  express  covenant  or  not.^*<*  The  lessee  and  his  as- 
signee or  sublessee  may  insert  any  covenants  they  choose  in  the  in- 
strument of  transfer,  and  so  regulate  their  obligations  to  each 
other. 

Transfer  hy  Operation  of  Law» 

Both  the  reversion  and  the  term  are  subject  to  involuntary  alien- 
ation, such  as  sale  on  execution.  A  purchaser  assumes  the  rights 
and  liabilities  of  an  assignee.^*^  An  assignee  in  banl^ruptcy  or 
insolvency  does  not  become  liable  as  assignee  of  a  term  owned 
by  his  assignor  until  he  has  had  a  reasonable  time  to  ascertain 
whether  it  is  an  available  asset.  Before  then  he  is  not  presumed 
to  accept.^*'     A  lessee  may  dispose  of  his  estates  for  years  by 

136  Cook  \.  Jones  (Ky.)  28  S.  W.  960.  But  see  Shannon  v.  Grindstaff,  11 
Wash,  536,  40  Pac.  123. 

18T  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  §  16;  1  Wood,  Landl.  &  Ten.  (2d  Ed.) 
181;  Trustees  of  Dartmouth  College  v.  Clough,  8  N.  H.  22.  But  he  may  pay 
rent  to  avoid  eviction.     Peck  v.  Ingersoll,  7  N.  Y.  528. 

13  8  Fennell  v.  GuCfey,  155  Pa.  St.  38,  25  Atl.  785;  Sanders  v.  Partridge,  108 
Mass.  556.     But  of.  Dey  v.  Greenebaum,  82  Hun,  533,  31  N.  Y.  Supp.  610. 

139  Grommes  v.  Trust  Co.,  147  111.  634,  35  N.  E.  820;  Wineman  v.  Phillips, 
93  Mich.  223,  53  N.  W.  168;  Oonrady  v.  Bywaters  (Tex.  Civ,  App.)  24  S.  W. 
961;  Bouscaren  v.  Brown,  40  Neb.  722,  59  N.  W.  385;  Charless  v.  Froebel,  47 
Mo.  App.  45;  Pittsburg  Consol.  Coal  Co.  v.  Greenlee,  164  Pa.  St,  549,  30  Atl. 
489;  Bless  v.  Jenkins,  129  Mo.  647,  31  S.  W.  938;  Walker's  Case,  3  Coke,  22a; 
Calborne  v.  Wright,  2  Lev.  239. 

140  McBee  v.  Sampson,  66  Fed.  416;  Armstrong  v.  Wheeler,  9  Cow.  (N.  Y.) 
88;  Childs  v.  Clark,  3  Barb.  Ch.  (N.  Y.)  52;  Tlbbals  v.  Iffland,  10  Wash.  451, 
39  Pac.  102.  But  see  Consolidated  Coal  Co.  v.  Peers,  150  111.  344,  37  N.  E. 
937;  Drake  v.  Lacoe,  157  Pa.  St.  17,  27  Atl.  538;  Lindsley  v.  Brewing  Cc 
59  Mo.  App.  271. 

141  McNeil  V.  Ames,  120  Mass.  481;    Lancashire  v.  Mason,  75  N.  O.  455. 
i42Pi-att  V.  Levan,  1  Miles  (Pa.)  358;    Bagley  v.  Freeman,  1  Hilt.  (N.  Y.) 

196;    Copeland  v.  Stephens,  1  Bam.  &  Aid.  594;    Carter  t.  Warne,  4  Car   & 
P.  191. 


160  ESTATES    A3    TO    QUANTITY LESS   THAN    FREEHOLD.  (Ch.  7 

will,^*»  but  if  he  fail  to  do  so  they  pass  on  his  death  to  his  per- 
sonal representative,  who  thus  becomes  an  assignee.'**  The  re- 
version, if  not  disposed  of,  is  subject  to  the  ordinary  rules  govern- 
ing the  descent  of  realty;  and  the  rent  follows  the  reversion,  un- 
less it  has  been  separately  assigned.^** 

SAME— TERMINATION  OF  ESTATES  FOR  YEARS. 

84.  An  estate  for  years  may  be  terminated: 

(a)  By  lapse  of  time  (p.  150). 

(b)  By  forfeiture  (p.  150). 

(c)  By  merger  (p.  152). 

(d)  By  surrender  (p.  152). 

(e)  By  destruction  of  the  premises,  in  some  cases  (p.  153). 

(f)  By  an  exercise   of  the  power    of  eminent    domain 

(p.   153). 

Lapse  of  Time. 

Estates  for  years  in  most  cases  determine  by  mere  lapse  of 
time;  that  is,  the  period  for  which  the  lease  was  made  expires, 
and  the  term  is  thereby  at  an  end,  withojit  any  notice  by  either 
party.'*' 

Forfeiture, 

When  the  continuance  of  a  term  Is  made  to  depend  on  a  condi- 
tion, or  there  is  a  reservation  of  a  right  of  re-entry  for  breach  of 

i*s  They  pass  by  a  devise  of  "personal  estate."     Brewster  v.  Hill,  1  N. 

EL  350. 

1*4  Martin  v.  Tobin,  123  Mass.  85;  Sutter  v.  Lackmann,  39  Mo.  91;  Mur- 
dock  V.  Ratcliff,  7  Ohio,  119.  But  the  rule  Is  otherwise  in  a  few  states,  by 
statute.  2  Shars.  &  B.  Lead.  Cas.  Real  Prop.  40.  The  lessee's  estate  con- 
tinues liable  for  the  rent.     Hutehings  v.  Bank,  91  Va.  68,  20  S.  E.  950. 

146  Lewis  V.  Wilkias,  Phil.  Eq.  (N.  C.)  303. 

148  Smith  V.  Snyder,  1G8  Pa.  St.  541,  32  Atl.  64;  Bedford  v.  M'Elherron, 
2  Serg.  &  R.  49;  Ackland  v.  Lutley,  9  Adol.  &  E.  879;  Poppers  v.  Meagher, 
148  111.  192,  35  N.  E.  805;  Duuphy  v.  Goodlander,  12  Ind.  App.  609,  40  N.  H. 
924;  Williams  y.  Mershon  (N.  J.  Sup.)  30  Atl.  619;  Montgomery  v.  Willis, 
45  Neb.  434,  63  N.  W.  794.  And  the  tenant  becomes  a  wrongdoer  if  he  re- 
fuses to  surrender  possession.  Frost  v.  Iron  Co.,  12  Misc.  Rep.  348,  33  N. 
Y.  Supp.  654;  Jackson  v.  Parkhurst,  5  Johns.  (N.  Y.)  128;  Ellis  v.  Paige, 
1  Pick.  (Mass.)  43;    Bedford  v.  M'Elherron,  2  Serg.  &  R.  (Pa.)  49. 


§    84)  TERMINATION    OF    ESTATES    FOR    YEARS.  151 

the  covenants  of  the  lease,  an  entry  in  either  instance  puts  an  end 
to  the  tenn.^*''  The  courts  are,  however,  rather  averse  to  en- 
forcing forfeitures;^**  and  when  the  breach  is  due  to  accident 
or  mistake,  and  can  be  compensated  in  damages,  as  it  usually  can 
be  in  the  case  of  rent,  relief  will  be  granted  the  tenant.^**  The 
relief  does  not  extend  to  cases  where  the  damages  are  not  a  mere 
matter  of  computation,  as  where  there  is  a  breach  of  a  covenant 
not  to  assign,  or  a  covenant  to  repair.^ °° 

Ke-entry  for  forfeiture  is  optional  with  the  lessor.^ °^  The  lessee 
cannot  insist  upon  it,  and  so  avail  himself  of  his  own  breach/'** 
Acceptance  of  rent  accruing  after  a  breach  will  be  a  waiver  of 
the  forfeiture,^"^'  but  acceptance  of  rent  due  before  the  breach  will 
not.^''*     Other  acts  of  the  landlord  may  also  constitute  a  waiver.^**"^ 

147  See  Carnegie  Nat.  Gas  Co.  v.  Philadelphia  Co.,  158  Pa.  St.  317,  27  Atl. 
951;  Heinouer  v.  Jones,  159  Pa.  St.  228,  28  Atl,  228.  In  a  few  states  the 
statutes  require  a  short  notice.     1  Stim.  Am.  St.  Law,  §§  2054,  2055. 

148  See  Sommers  v.  Reynolds,  103  Mich.  307,  61  N.  W.  501;  Dralie  v. 
Lacoe,  157  Pa.  St.  17,  27  Atl.  538.  When  there  Is  a  clause  of  forfeiture  for 
nonpayment  of  rent  a  demand  must  be  made  therefor  on  the  land,  at  the 
front  door  of  the  house,  if  there  is  a  house,  and  at  a  convenient  time  before 
sunset  of  the  very  day  the  rent  falls  due,  unless  a  demand  is  dispensed 
with  by  the  terms  of  the  lease.  2  Tayl.  Landl.  &  Ten.  §  493;  Smith  v.  Whit- 
beck,  13  Ohio  St.  471;  Jackson  v.  Harrison,  17  Johns.  (N.  Y.)  66;  Van  Rens- 
selaer V.  Snyder,  9  Barb.  (N.  Y.)  302;  Connor  v.  Bradley,  1  How.  211;  Fay- 
lor  V.  Brice,  7  Ind.  App.  551,  34  N.  E.  833.  Cf.  Haynes  v.  Investment  Co., 
85  Neb.  766,  53  N.  W.  979.  But  see  Shanfelter  v.  Horner  (Md.)  32  Atl.  184. 
Under  the  statutes  of  many  states,  the  landlord  may  terminate  the  ten- 
ancy, for  nonpayment  of  rent,  without  any  agreement  to  that  effect.  1  Stim. 
Am.  St.  Law,  §  2054. 

140  Baxter  v.  Lansing,  7  Paige  (N.  Y.)  850;  Gregory  v.  Wilson,  9  Hare, 
683;  Nokes  v.  Gibbon,  3  Drew.  681.  But  see  Rolfe  v.  Harris,  2  Price,  206, 
note;    Cage  v.  Russel,  2  Vent.  352. 

160  2  TayL  Landl.  &  Ten.  (8th  Ed.)  81. 

151  Cochi-an  v.  Pew.  159  Pa.  St.  184,  28  Atl.  219.  Or  his  assignee,  who  may 
also  claim  it  2  Tayl.  Landl,  &  Ten.  (8th  Ed.)  75.  And  see  Wilson  v.  Gold- 
Btein,  152  Pa.  St.  524,  25  Atl,  493. 

152  Gibson  v.  Oliver,  158  Pa.  St.  277,  27  Atl.  961;  Brady  v.  Nagle  (Tex.  Civ. 
App.)  29  S.  W.  943;  Amsby  v.  Woodward,  6  Bam.  &  O.  519;  Reid  v.  Parsons, 
2  Chit.  247. 

163  Jackson  v.  Sheldon,  5  Cow.  (N.  Y.)  448;    Bleecker  v.  Smith,  13  Wend. 

164  See  note  154  on  following  page,         ib6  See  note  155  on  following  page. 


152  ESTATES    AS    TO    QUANTITY LESS    THAN    FREEHOLD.  (Ch.  7 

Merger. 

An  estate  for  years  may  be  terminated  by  a  merger,  as  where 
the  fee  is  acquired  by  the  tenant  for  years.^"' 

An  estate  for  years  will  merge  in  a  life  estate,*'^  or  in  another 
term  of  years/ "^^  as  well  as  in  the  fee. 

Surrender. 

A  surrender  ^"'  will  terminate  an  estate  for  years,*'"  but  only 
when  made  to  the  holder  of  the  next  estate.    Therefore  an  under- 

(N.  Y.)  530;  Gomber  v.  Hackett,  6  Wis.  323;  Newman  v.  Rutter,  8  Watts  (Pa.) 
51;  Doe  v.  Rees,  4  Bing.  N.  C.  384;  Doe  v.  Johnson,  1  Starkie,  411;  Clark  v. 
GrpeuQeld  (Com.  PL)  34  N.  Y.  Supp.  1;  Koehler  v.  Brady,  78  Hun,  443,  29  N.  Y. 
Supp.  388;  Michel  v.  O'Brien,  6  Misc.  Rep.  408,  27  N.  Y.  Supp.  173;  Brooks 
V.  Rodgers,  99  Ala.  433,  12  South.  61.  The  landlord  must  have  knowledge 
of  the  breach.  Jackson  v.  Schutz,  18  Johns.  (N.  Y.)  174;  People's  Bank  v. 
Mitchell,  73  N.  Y.  400;  Garnhart  v.  Finney,  40  Mo.  449;  Roe  v.  Harrison,  2 
Term  R.  425;  Barber  v.  Stone  (Mich.)  62  N.  W.  139;  Stover  v.  Hazelbaker.  42 
Neb.  393.  60  N.  W.  597;  Bowling  v.  Crook,  104  Ala.  130,  16  South.  131.  But 
see  Miller  v.  Prescott,  163  Mass.  12,  39  N.  B.  409. 

154  Jackson  v.  Allen,  3  Cow.  (N.  Y.)  220;  Hunter  v.  Osterhoudt,  11  Barb. 
(N.  Y.)  33;  Conger  v.  Duryee,  24  Hun  (N.  Y.)  617;  Frazier  v.  Caruthers,  44 
111.  App.  61;    Carraher  v.  Bell,  7  Wash.  81,  34  Pac.  469. 

165  Lynch  v.  Gas  Co.,  165  Pa.  St.  518,  30  Atl.  984;  Nelson  v.  Eachel,  158  Pa. 
St.  372,  27  Atl.  1103;  Frazier  v.  Caruthers,  44  111.  App.  61;  Deaton  v.  Taylor, 
90  Va.  219.  17  S.  E.  944;  Little  Rock  Granite  Co.  v.  Shall,  59  Ark.  405.  27  S. 
W.  562.  But  see  Cleminger  v.  Gas  Co.,  159  Pa.  St.  16,  28  Atl.  293;  Williams 
V.  Vanderbilt,  145  111.  238,  34  N.  E.  476;  Jones  v.  Durrer,  96  Cal.  95,  30  Pac. 
1027;  Moses  v.  Loomis,  156  111.  392,  40  N.  E.  952;  Doe  v.  Meux,  4  Barn.  &  G. 
606;  Balfour  v.  Russell,  167  Pa.  St.  287,  31  Atl.  570.  A  notice  to  quit  at  the 
end  of  a  certain  time,  given  after  the  breach,  may  constitute  a  waiver.  Doe 
v.  Miller.  2  Car.  &  P.  348;  Doe  v.  Allen,  3  Taunt.  78. 

156  Roberts  v.  Jackson,  1  Wend.  (N.  Y.)  478;  Carroll  v.  Ballance,  26  lU.  19; 
McMahan  v.  Jacoway  (Ala.)  17  South.  39.  Merger  will  also  destroy  cove- 
nants incident  to  the  reversion.  Webb  v.  Russel,  8  Term  R.  393;  Thorn  v. 
Woollcombe.  3  Barn.  &  Adol.  586. 

157  Even  though  the  term  be  longer  than  the  life  estate  can  possibly  last. 
1  Waslih.  Real  Prop,  (,5th  Ed.)  586. 

158  4  Kent.  Comm.  (12th  Ed.)  99.  The  second  term  need  not  be  as  long  as 
the  term  to  be  merged.     Stephens  v.  Bridges.  6  Madd.  66. 

159  For  a  definition  of  a  surrender,  and  the  requisites  for.  see  post,  P408. 
180  Conway  v.  Carpenter.  SO  Hun,  428.  30  N.  Y.  Supp.  315;    Honks  v.  Forst, 

105  Pa.  St.  23S,  30  AtL  846;  Wolf  v.  Guffey.  161  Pa.  St.  276,  28  Atl.  1117;  Barn- 
hart  V.  Lockwood,  152  Pa.  St.  82,  25  Atl.  237;   May  v.  Oil  Co.,  152  Pa.  St.  518, 


§    84)  TERMINATION    OF    ESTATES    FOR    YEARS.  155 

lessee  cannot  surrender  to  the  original  lessor.^'*  The  making  of  a 
new  lease  may  op)erate  as  a  surrender  of  the  old  one.^" 

Destruction  of  Premises. 

The  destruction  of  the  premises — for  instance,  where  a  room  is 
leased,  and  the  whole  house  is  burned — puts  an  end  to  the  tenancy, 
because  the  subject-matter  of  the  lease  has  ceased  to  exist/ ^^ 
This  is  not  true,  of  course,  in  the  absence  of  an  agreement,  where 
the  part  destroyed  is  not  the  whole  subject  of  the  lease,  as  where 
a  house  and  lot  are  leased,  and  the  house  is  destroyed.^"* 

Taking  under  Power  of  Eminent  Domain. 

If  the  demised  premises  are  taken  under  the  power  of  eminent 
domain,  the  relation  of  landlord  and  tenant  comes  to  an  end.^®* 
But,  if  only  a  part  is  taken,  both  lessor  and  lessee  can  claim  com- 
pensation for  the  taking,  and  the  tenancy  continues.^^* 

25  Atl.  564;  Williams  v.  Vanderbilt,  145  111.  238,  34  N.  E.  476;  Smith  v.  Pender- 
gast,  26  Minn,  318,  3  N.  W.  978;  Nelson  v.  Thompson,  23  Minn.  508.  See 
Burnham  v.  O'Grady,  90  Wis.  461,  63  N,  W.  1049;  Hooks  v.  For&t,  165  Pa.  St. 
238,  30  Atl.  846;  Aderhold  v.  Supply  Co.,  158  Pa.  St.  401,  28  Atl.  22;  Hough  v. 
Brown  (Mich.)  62  N.  W.  143;  National  Union  Bldg.  Ass'n  v.  Brewer,  41  111. 
App.  223.  The  surrender  must  be  accepted.  Pendill  v.  Mining  Co.  (Mich.)  62 
N.  W.  1024;  Joslin  v.  McLean,  99  Mich.  480,  58  N.  W.  467;  Stevens  v.  Pantlind. 
95  Mich.  145,  54  N.  W.  716;  Lane  v.  Nelson,  167  Pa.  St.  602,  31  Atl.  864;  Reeves 
V.  McComeskey,  168  Pa.  St.  571,  32  Atl.  96;  Rees  v.  Lowy,  57  Minn.  381,  59 
N.  W.  310;  Stern  v.  Thayer,  56  Minn.  93,  57  N.  W.  329. 

161  2  Wood,  Landl.  &  Ten.  (2d  Ed.)  1152;  2  Tayl.  Landl,  &  Ten.  (8th  Ed.)  95. 

162  Walker  v.  Githens,  156  Pa.  St.  178,  27  Atl.  36;  Evans  v.  McKanna,  89 
Iowa,  362,  56  N.  W.  527.  But  see  Witmark  v.  Railroad  Co.,  76  Hun,  302,  27  N. 
Y.  Supp.  777.    Cf.  Beal  v.  Car-Spring  Co.,  125  Mass.  157. 

168  Hecht  v.  Herrwagen,  13  Misc.  Rep.  316,  34  N.  Y.  Supp.  456;  Graves  v. 
Berdan,  26  N,  Y.  498;  Ainsworth  v.  Ritt,  38  Cal.  89;  Buschman  v.  Wilson.  2!9 
Md.  553.  This  is  regulated  by  statute  in  some  states.  1  Stim.  Am.  St.  Law,  § 
2062.  And  see  Craig  v.  Butler,  S3  Hun,  286,  31  N.  Y.  Supp.  963;  Fleischman  v. 
Toplitz,  134  N.  Y.  349,  31  N.  E.  1089. 

164  Phillips  v.  Stevens,  16  Mass.  238;  Davis'  Adm'r  v.  Smith,  15  Mo.  467; 
Ross  v.  Overton,  3  Call  (Va.)  309.  But  see  New  York  Real-Estate  &  Bldg. 
Imp.  Co.  V.  Motley,  143  N.  Y.  156,  38  N.  E.  103;  Hunnewell  v.  Bangs,  161  Mass. 
132,  36  N.  E.  751;    Meyer  v.  Henderson  (La.)  16  South.  729. 

16  6  Barclay  v.  Picker,  38  Mo.  143. 

166  Parks  v.  City  of  Boston,  15  Pick.  (Mass.)  198;  Workman  v.  Mifflin,  30 
Pa.  St.  362;   City  of  Chicago  v.  Garrity,  7  111.  App.  474;    Foote  v.  City  of  Cin- 


154  ESTATES    AS    TO    QUANTITY — LESS    THAN    FREEHOLD.  (Ch.  7 


LETTING  LAND  ON  SHARES. 

85.  A  letting  of  land  on  shares  may  make  the  cultivator: 

(a)  A  servant. 

(b)  A  co-tenant. 

(c)  A  lessee. 

Land  is  often  cultivated  under  an  agreement  by  which  both  the 
owner  and  the  cultivator  are  to  share  in  the  crop.^*^  Such  an 
agreement  may  establish  the  relation  of  employer  and  employd 
between  the  parties,  a  share  of  the  crops  being  given  in  lieu  of 
wages/'*  or  they  may  be  tenants  in  common  of  the  crop,^'®  or  the 
transaction  may  constitute  a  leasing  with  a  rent  payable  in  crops, 
and  the  usual  incidents  of  the  relation  of  landlord  and  tenant  ex- 
ist.^^°     Probably  no  rule  can  be  laid  down  for  determining  the  re- 

cinnatl,  11  Ohio,  408.    And  see  Corrigan  v.  City  of  Chicago,  144  111.  537,  33  N. 
E.  74G. 

187  Such  holdings  are  now  regulated  by  statute  in  some  states.  See  1  Stim. 
Am.  St  Law,  §  2037.  The  cropper,  or  one  farming  on  shares,  cannot  assign 
his  interest.    McNeeley  v.  Hart,  10  Ired.  (N.  C.)  63. 

168  Tanner  v.  Hills,  48  N.  Y.  6G2;  Steel  v.  Frick,  56  Pa.  St.  172;  Chase  v. 
McDonnell,  24  111.  236;  Gray  v.  Robinson  (Ariz.)  33  Pac.  712;  Haywood  v. 
Rogers,  73  N.  C.  320;  i-Jeal  v.  Bellamy,  Id.  384.  But  see  Harrison  v.  Ricks,  71 
N.  C.  7;  State  v.  Jones,  2  Dev.  &  B.  (N.  C.)  544.  Possession  and  property  in 
the  crop  remain  in  the  owner  of  the  land.  Adams  v.  McKesson's  Ex'x,  53  Pa. 
St.  81;   Appling  v.  Odom,  46  Ga.  583. 

169  Walker  v.  Fitts,  24  Pick.  (Mass.)  191;  Creel  v.  Kirkham,  47  111.  344;  De 
Mott  V.  Hagerman,  8  Cow.  (N.  Y.)  220;  Dinehart  v.  Wilson,  15  Barb.  (N.  Y.) 
595;  Wilber  v.  Sisson,  53  Barb.  (N.  Y.)  258;  Edgar  v.  Jewell,  34  N.  J.  Law, 
259.  And  see  Wood  v.  Noack,  84  Wis.  398,  54  N.  W.  7S5;  Caswell  v.  Districh, 
lo  Wend.  (N.  Y.)  379;  Jones  v.  Durrer,  96  Cal.  95,  30  Pac.  1027;  Lowe  v. 
Miller,  3  Grat.  (Va.)  205;  Moser  v.  Lower,  48  Mo.  App.  85.  The  usual  inci- 
dents of  a  tenancy  in  common  attach  to  such  holdings.  McLaughlin  v.  Sal- 
ley,  46  Mich.  219,  9  N.  W.  256;  Otis  v.  Thompson,  1  Hill  &  D.  (N.  Y.)  131; 
Daniels  v.  Brown,  34  N.  H.  454;  Ferrall  v.  Kent,  4  Gill  (Md.)  209;  Hard  v. 
Darling,  14  Vt.  214.     For  tenancy  in  common,  see  post,  p.  335, 

170  Walworth  v.  Jenness,  58  Vt.  670,  5  Atl.  887;  Yates  v.  Kinney,  19  Neb. 
275,  27  N.  W.  132;  Alwood  v.  Ruckman,  21  111.  200;  Dixon  v.  Niccolls,  39  111. 
372;  Jackson  v.  Brownell,  1  Johns.  (N.  Y.)  267;  Johnson  v.  Hoffman,  53  Mo. 
504.  Cf.  Barry  v.  Smith,  69  Hun,  88,  23  N.  Y.  Supp.  261;  Rich  v.  Hobson, 
112  N.  G.  79,  16  S.  E.  931.     The  right  of  the  landlord  to  the  crop  attaches  only 


§    87)  TENANCIES    AT   WILL CREATION.  155 

suit  of  sucli  an  agreement  which  will  hold  good  in  all  cases.  The 
intention  of  the  parties  is  in  every  instance  to  be  given  full  effect.^"' ^ 
But  if  the  owner  is  to  receive  a  definite  amount  of  grain  or  other 
produce,  not  confined  to  crops  grown  on  the  premises,  he  receives 
it  as  lessor.^^' 

TENANCIES  AT  WILL. 

86.  A  tenancy  at  will  is  a  letting  of  land  to  be   held  so 
long  as  neither  party  chooses  to  terminate  it. 

SAME— CREATION. 

67.  Tenancies  at  ■will  are  created: 

(a)  By  a  letting  for   an  indefinite   period,  not  in  a  form 

to  pass   a   freehold,  and  without  a   reservation  of 
rent. 

(b)  By  express  agreement. 

(c)  By  implication  of  law. 

A  tenancy  at  will  is  where  a  person  is  in  possession  of  land  let 
to  him  to  hold  at  the  will  of  the  lessor.  The  tenancy,  however,  is 
one  at  the  will  of  either  party.  A  general  letting  without  limi- 
tation as  to  duration  of  a  term  (not  being  in  a  form  to  pass  an  es- 
tate of  freehold),  or  a  mere  permission  to  enter  and  occupy,  creates 
a  tenancy  at  will,  provided  no  rent  is  reserved.  The  reservation  of 
a  rent  raises  a  presumption  that  the  tenancy  is  from  year  to  year. 

on  delivery.  Burns  v.  Cooper,  31  Pa.  St.  426;  Caswell  v.  Districh,  15  Wend. 
(N.  Y.)  379;  Butterfield  v.  Baker,  5  Pick.  (Mass.)  522;  Alwood  v.  Euckman. 
21  lU.  200;  Dixon  v.  Niccolls,  39  111.  384;  McLellan  v.  Whitney,  65  Vt  510, 
27  Atl.  117.  But  see  Moulton  v.  Robinson,  27  N.  H.  550;  Horseley  v.  Moss, 
5  Tex.  Civ.  App.  341,  23  S.  W.  1115;  Gray  v.  Robinson  (Ariz.)  33  Pac.  712; 
Consolidated  Land  &  Irrigation  Co.  v.  Ha'vley  (S.  D.)  63  N.  W.  904.  The 
rent  is  only  due  at  hai-vest  time.  Lamberton  v.  StouEfer,  55  Pa.  St.  284;  Co- 
bel  v.  Cobel,  8  Pa.  St.  342.     But  see  Dixon  v.  Niccolls,  39  111.  372. 

iTi  Dixon  V.  Niccolls,  39  111.  3S4,  386;  Lewis  v.  Lyman,  22  Pick.  (Mass.)  437; 
Armstrong  v.  Bicknell,  2  Lans.  (N.  Y.)  216;  Moulton  v.  Robinson,  27  N.  H. 
550.     But  see  Birmingham  v.  Rogers,  46  Ark.  254. 

17  2  Hoskins  v.  Rhodes,  1  Gill  &  J.  (Md.)  266;  Newcomb  v.  Ramer,  2  Johns. 
(N.  Y.)  421,  note;  Dockham  v.  Parker,  9  Greenl.  (Me.)  137.  And  see  Caruthers 
V.  Williams,  58  Mo.  App.  100. 


156  ESTATES    AS    TO    QUANTITY LESS    THAN    FREKHOLD.  (Cil.  7 

A  tennncy  at  will  may,  of  course,  be  created  by  express  aj^ree- 
meiit,  even  with  a  reservation  of  rent,  if  apt  words  are  employed."* 
It  also  arises  by  implication  of  law.  In  such  cases  the  entry  is 
usually  for  some  other  purpose  than  to  create  a  tenancy.  Thus 
one  who  enters  under  a  contract  to  purchase,  and  remains  after 
the  nejiotiation  has  fallen  throuj^h,  becomes  a  tenant  at  will.^''* 
So  a  vendor  or  lessor,  by  continuing  in  possession,  may  become  a 
tenant  at  will."* 

SAME— INCIDENTS. 

88.  The  principal  incidents  of  a  tenancy  at  will  are  the  foi- 
lo\ying: 

(a)  The  tenant  is  entitled  to  emblements,  unless  he  ter- 

minates the  tenancy  himself. 

(b)  He  must  not  commit  waste. 

(c;  His  interest  cannot  be  sold  on  execution. 

173  Leake,  Land.  208.     Cf.  Doe  v.  Cox,  11  Q.  B,  122. 

174  Doe  V.  Cbambeilaine,  5  Mees.  &  W.  14;  Doe  v.  Miller,  5  Car.  &  P.  595; 
Gould  V.  Thompsou,  4  Mete.  (Mass.)  224;    Manchester  v.  Doddridge,  3  Ind. 
3G0.     Entry  under  a  parol  contract  to  purcbase  creates  a  tenancy  at  will. 
Hall  V.  Wallace,  88  Cal.  4S4,  26  Pac.  3U0.     But  if  the  sale  is  not  consum- 
mated, by  fault  of  the  vendee,  he  becomes  a  mere  trespasser,  and  liable  only 
in  tort  for  the  mesne  profits.     Prentice  v.  Wilson,  14  111.  91;    Howard  v. 
Shaw.  8  Mees.  &  W.  118;    Smith  v.  Stewart,  G  Johns.  (N.  Y.)  4G;    Clou^rh  v.. 
Hosford,  f)  N.  H.  231;    Bell  v.  Ellis'  Heirs,  1  Stew.  &  P.  (Ala.)  294;    Glascock: 
V.  Robards.  14  Mo.  liuO.     A  tenancy  at  will  arises  when  possession  is  taken 
under  an  agreement  for  a  lease,  Childers  v,  Lee  (N.  M.)  25  Pac.  781;    Weed- 
V.  Lindsay.  88  Ga.  G86,  15  S.  E.  83G;   Mayor,  etc.,  of  Thetford  v.  Tyler,  8  Q.  B. 
95;   or  under  a  parol  lease  for  more  than  the  time  allowed  by  the  statute  of 
frauds,  Jennings  v.  McComb,  112  Pa.  ^t.  518,  4  Atl.  812;    Talamo  v.  Spitz- 
miller.  120  N.  Y.  37,  23  N.  E.  980.     But  if  rent  is  paid  the  holding  is  from 
year  to  year.    Doe  v.  Amey,  12  Adol.  &  E.  47G;    Barlow  v.  Wainwrlght,  22. 
Vt.  88. 

17B  Howard  v.  Merriam,  5  Cush.  (Mass.)  5G3;  Bennett  v.  Robinson,  27  Mich. 
2G;  Tarlotting  v.  Bokern,  95  Mo.  541,  8  S.  W.  547;  Brooks  v.  Hyde,  37  Cal. 
3G6;  Sherburne  v,  Jones,  20  Me.  70;  Currier  v.  Earl,  13  Me.  216.  So  of  a. 
debtor  remaining  In  possession  after  execution  sale.  Nichols  v.  Williams,  8 
Cow.  (N.  Y.)  13.  But  see  Tucker  v.  Byers,  57  Ark.  215,  21  S.  W.  227;  Groome 
Y.  Almstead,  101  Cal.  425,  35  Pac  1021. 


§    89)  TENANCIES    AT    WILL TERMINATION.  157 

If  the  tenant  at  will  puts  an  end  to  the  relation  of  lessor  and 
lessee,  he  is  not  entitled  to  emblements/^*  but  he  is  so  entitled 
when  the  lessor  causes  the  termination  of  the  tenancy.^"  The 
tenant's  interest  is  forfeited  for  waste.^''*  Estates  at  will  are 
chattel  interests,  but  cannot  be  sold  on  execution."' 

SAME— TERMINATION. 

89.  A  tenancy  at  will  may  be  terminated  at  any  time  by 
either  party  -without  notice,  except: 
EXCEPTION'S — (a)  The  parties  may  agree  to  give  notice, 
(b)  In  some  states,  notice  is  required  by  statute. 

At  common  law,  the  parties  to  a  tenancy  at  will  terminate  it  at 
any  time  either  one  chooses  to  do  so,  and  without  giving  any  pre- 
vious notice  of  such  intention  to  the  other  party.  The  parties  may, 
of  course,  by  agreement,  provide  for  any  kind  of  a  notice  they 
choose,  and  for  any  length  of  time  before  terminating  the  tenancy. 
The  statutes  of  many  states  now  require  a  notice  before  a  ten- 
ancy at  will  can  be  terminated.^ ^°  Where  such  notice  is  not  re- 
quired, and  the  parties  have  not  stipulated  for  one,  either  landlord 
or  tenant  may  put  an  end  to  the  tenancy  by  almost  any  act  which 
shows  such  an  intention.^'^  Any  assertion  by  the  lessor  of  his 
right  to  possession  terminates  the  tenancy.^**     An  assignment  by 

176  Carpenter  v.  Jones,  63  111.  517. 

17  7  Sherburne  v.  Jones,  20  Me.  70;  Davis  v.  Thompson,  13  Me,  209;  Simp- 
kins  V.  Rogers,  15  111.  397;   Harris  v.  Frink,  49  N.  Y.  24, 

178  Daniels  v.  Bond,  21  Pick.  (Mass.)  367;  Phillips  v.  Ck)vert,  7  Johns.  (N. 
Y.)  1;  Rapallo,  J.,  in  Harris  v.  Frink,  49  N.  Y.  33.  And  see  Perry  v.  CaiT, 
44  N,  H.  lis. 

178  1  Stim,  Am.  St  Law,  §  1344;   2  Shars.  &  B,  Lead,  Cas.  Real  Prop.  169, 

180  The  length  of  notice  required  ranges  from  a  few  days  to  three  months. 
1  Stim.  Am.  St.  Law,  §  2051;  2  Shars.  &  B.  Lead.  Cas.  Real  Prop.  177,  Cf. 
Morgan  v.  Powers,  S3  Hun,  298,  31  N.  Y.  Supp.  954. 

181  2  Tayl.  Landl.  &  Ten.  (8th  Ed.)  §  44;  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  ai. 
But  see  Parker  v.  Constable,  3  Wils.  25;  Jackson  v.  Bryan,  1  Johns.  (N.  Y.) 
S22.  Death  of  either  party  terminates  the  tenancy.  James  v.  Dean,  11  Yes. 
383;  Rising  v.  Stannard,  17  Mass.  282;  Manchester  v,  Doddridge,  3  Ind,  300; 
Say  V.  Stoddard,  27  Ohio  St.  478.  But  the  tenant  has  a  reasonable  time  to 
remove  his  property.    Ellis  v.  Paige,  1  Pick.  (Mass.)  43. 

182  Such  as  selling  the  premises,  Howard  v.  Merriam,  5  Cush.  (ilass.)  563; 


158 


ESTATES    AS    TO    QUANTITY — LESS    THAN    FREEHOLD.  (Ch.   7 


the  tenant  of  his  interest  destroys  the  tenancy,  at  the  landlord's 
option.^" 

TENANCIES  FROM  YEAB  TO  YEAR. 

90.  A  tenancy  from  year  to  year  is  a  letting  of  land  for 
an  indefinite  number  of  fixed  periods. 


SAME— CREATION. 

91.  A  tenancy  from  year  to  year  arises  whenever  there  is 
a  reservation  of  rent  in  a  letting  -which  -would 
other-wise  be  a  tenancy  at  -will,  except: 
EXCEPTION— In  a  few  states,  by  statute,  a  general  let- 
ting creates  a  tenancy  from  year  to  year,  unless  a 
contrary  intention  is  expressed. 

Estates  from  year  to  year  "*  include  those  from  quarter  to  quar- 
ter,^" month  to  month/"  and  so  on;  the  length  of  the  periods  be- 

Jackson  v.  Aldrich,  13  Johns.  (N.  Y.)  106;  Curtis  v.  Galvln,  1  Allen  (Mass.) 
215;  or  leasing  them,  Clark  v.  Wheelock,  99  Mass.  14;  Hildreth  v.  Conan,  10 
Mete.  (Mass.)  298;  Kelly  v.  Waite,  12  Mete.  (Mass.)  300;  Groustra  v.  Bourgea, 
141  Mass.  7,  4  N.  E.  623.  So  does  a  demand  of  possession,  Doe  v.  M'Kaeg, 
10  Barn.  &  C.  721;  Den  v.  Howell,  7  Ired.  (N.  C.)  496;  or  acts  which  would 
otherwise  be  trespass.  Turner  v.  Doe,  9  Mees.  &  W.  643;  aa  an  entry  upon 
the  land,  Moore  v.  Boyd,  24  Me.  242. 

183  Cooper  V.  Adams,  6  Cush.  (Mass.)  87;  Packard  v.  Railway  Co.,  48  111. 
App.  244;  Den  v.  Howell,  7  Ired.  (N.  C.)  496.  And  see  Hersey  v.  Chapin,  162 
Mass.  176,  38  N.  E.  442.  A  denial  of  the  landlord's  tiUe  will,  at  his  option, 
terminate  the  tenancy.  Willison  v.  Watkins,  3  Pet.  43;  Currier  v.  Earl,  13 
Me.  216;  Farrow's  Heirs  v.  Edmundson,  4  B,  Mon.  (Ky.)  605;  Harrison  v. 
Middleton,  11  Grat.  (Va.)  527;   Fusselman  v.  Worthington,  14  111.  135. 

184  "From  term  to  term"  would  be  a  more  accurate  designation  of  these 
tenancies,  but  the  practice  is  otherwise.  In  many  states  there  are  statutes 
which  raise  presumptions  as  to  the  kind  of  a  tenancy  which  arises  In  the 
absence  of  express  contract,  from  a  general  occupancy.  1  Stim.  Am.  St.  Law, 
8  2002. 

186  City  of  San  Antonio  v.  French,  80  Tex.  575,  16  S.  W.  440. 

186  Anderson  v.  Prindle,  23  Wend.  (N.  Y.)  616;  Sebastian  v.  Hill,  51  III. 
App.  272;  Lehman  v.  Nolting,  56  Mo.  App.  549;  Rogers  v.  Brown,  57  Minn. 
223,  58  N.  W.  981;  Backus  v.  Sternberg,  59  Minn.  403,  61  N.  W.  335.  See, 
also,  Cox  V.  Bent,  5  Bing.  185;  Tress  v.  Savage,  4  El.  &  Bl.  36. 


§91)         TENANCIES  FROM  YEAR  TO  YEAR CREATION.  159 

ing  measured  by  the  time  for  which  rent  is  reserved.^*''  They  are, 
in  effect,  tenancies  which  continue  until  one  of  the  parlies  talvcs 
the  steps  requisite  to  put  an  end  to  the  relation.^**  By  the  early 
common  law,  all  tenancies  for  an  indefinite  period  were  at  will, 
but,  to  prevent  the  harsh  effects  often  caused  by  their  being  ter- 
minable without  notice,  the  rulings  of  the  courts  and  statutory 
enactments  have  changed  most  of  them  into  tenancies  from  year 
to  year.^*'  The  principal  distinction  is  that  a  reservation  of  rent 
makes  a  general  letting  a  tenancy  from  year  to  year,^^°  which, 
without  a  rent  reserved,  is  at  will ;  ^'^  that  is,  a  tenancy  from  year 
to  year  arises  from  a  general  letting  with  a  reservation  of  rent,^®^ 
or  when  possession  is  taken  under  a  void  lease.^®^     If  no  rent  is 

187  In  some  states,  tenancy  from  year  to  year  does  not  exist.  1  Stim.  Am. 
St.  Law,  §  2005. 

188  People  V.  Darling,  47  N.  Y.  666;  Lesley  v.  Randolph,  4  Rawle  (Pa.)  123. 
A  tenancy  may  be  created  to  continue  from  year  to  year  for  two  years.  It 
may  be  determined  at  the  end  of  a  year  by  notice,  and  terminates  at  the 
end  of  two  years  without  notice.     Doe  v.  Smaridge,  7  Q.  B.  957. 

189  1  Wood,  Landl.  &  Ten.  (2d  Ed.)  85;   1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  62. 

190  See  ante,  p.  155.    But  cf.  Richardson  v.  Langridge,  4  Taunt.  128. 

191  Herrell  v.  Sizeland,  81  111.  457;  Cheever  v.  Pearson,  16  Pick.  (Mass.)  266; 
Burns  v.  Bryant,  31  N.  Y.  453;  Sarsfield  v.  Nealey,  50  Barb.  (N.  Y.)  245;  Cross 
V.  Upson,  17  Wis.  638;  Amick  v.  Brubaker,  101  Mo.  473,  14  S.  W.  627;  Wil- 
liams V.  Deriar,  31  Mo.  13;  Le  Tourneau  v.  Smith,  53  Mich.  473,  19  N.  W.  151; 
Blanehard  v.  Bowers,  67  Vt.  403,  31  Atl.  848;  Den  v.  Humphries,  3  Ired.  (N, 
C.)  362.  And  see  Murray  v.  Cherrington,  99  Mass.  229;  Sanford  v.  Johnson, 
24  Minn.  172;    Goodenow  v.  Allen,  68  Me.  308. 

192  Second  Nat.  Bank  v.  O.  E.  MerriU  Co.,  69  Wis.  501,  34  N.  W.  514;  Hunt 
V.  Morton,  18  111.  75;  Ganson  v.  Baldwin,  93  Mich.  217,  53  N.  W.  171;  Lesley 
V.  Randolph,  4  Rawle  (Pa.)  123.  But  see  Union  Depot  Co.  v.  Chicago,  K.  & 
N.  Ry.  Co.,  113  Mo.  213,  20  S.  W.  792;  Salomon  v.  O'Donnell  (Colo.  App.)  36 
Pac.  893. 

193  Coudert  v.  Cohn,  118  N.  Y.  309,  23  N.  E.  298;  Brant  v.  Vincent,  100  Mich. 
420,  59  N.  W.  169;  Hosli  v.  Yokel,  58  Mo.  App.  109;  Koplitz  v.  Gustavus,  48 
Wis.  48,  3  N.  W.  754;  Bateman  v.  Maddox,  80  Tex.  546,  26  S.  W.  51;  Rosen- 
blat  V.  Perkins,  18  Or.  156,  22  Pac.  598.  So,  too,  a  tenancy  from  year  to  year 
may  arise  by  holding  over  after  the  expiration  of  an  estate  for  years.  If  the 
acts  of  the  parties  show  an  intention  to  continue  the  relation  of  landlord  and 
tenant,  the  provisions  of  the  old  lease  will  govern,  as  far  as  they  are  ap- 
plicable. Ashhurst  v.  Phonograph  Co.,  166  Pa.  St.  357,  31  Atl.  116;  Patterson 
V.  Park,  166  Pa.  St.  25,  30  Atl.  1041;  Kleespies  v.  McKenzie,  12  Ind.  App.  404, 
40  N.  E.  648;   Johnson  v.  Doll,  11  Misc.  Rep.  345,  32  N.  Y.  Supp.  132;   Conway 


160  ESTATES    AS    TO    QUANTITY LESS    THAN    FREEHOLD.  (Ch.  7 

reserved  orijxinally,  the  actual  payment  of  rent  will  make  the  hold- 
ing one  from  year  to  year."* 

SAME— INCIDENTS. 

92.  The  principal  incidents   of  estates  from   year  to  year 
are  the  following: 

(a)  The  tenant  may  take  estovers. 

(b)  He  is  entitled  to  emblements  when  the  landlord  ter- 

minates the  tenancy. 

(c)  He  must  repair. 

(d)  The  interests  of  the  parties  are  assignable. 

The  incidents  of  estates  from  year  to  year  are  for  the  most  part 
the  same  as  of  estates  for  years.^"'  The  tenant  is  entitled  to 
estovers,  and  to  emblements,  when  the  tenancy  is  terminated  by  the 
landlord,^®^  but  not  when  the  tenant  terminates  it.  The  tenant's  duty 
to  repair  extends  to  keeping  the  premises  wind  and  water  tight.^^^ 
Either  party  may  assign  his  interest,"*  and  on  the  death  of  the 
tenant  his  interest  goes  to  his  personal  representative.^®*  After 
the  termination  of  the  tenancy  has  been  fixed  by  notice,  it  be- 
comes, in  effect,  equal  to  a  term  of  years  which  has  nearly  ex- 
pired.200 

v.  starkweather,  1  Denio  (N.  Y.)  113;  Hyatt  v.  Griffiths,  17  Q.  B.  505;  Amsden 
v.  Atwood.  G7  Vt.  289,  31  AtL  448;  Voss  v.  King,  38  W.  Va.  GOT,  18  S.  E.  762. 
But  see  Cauipau  v.  Michell  (Mich.)  61  N.  W.  81K);  Chicaf,'o  &  S.  E.  Ry.  Co.  v. 
Perliins,  12  Ind.  App.  131,  38  N.  E.  487;  Montgomery  v.  WilUs  (Neb.)  63  N.  W. 
794;  Goldsbrough  v.  Cable,  49  111.  App.  554. 

19*  Jackson  v.  Bradt,  2  Gaines  (N.  Y.)  169;  Lesley  v.  Randolph,  4  Rawle  (Pa.) 
123;  Rich  V.  Bolton,  46  Vt.  84;  Chamberlin  v.  Donahue,  45  Vt  50;  Roe  v. 
Lees,  2  W.  Bl.  1171;  Richardson  v.  Langrldge,  4  Taunt.  128.  But  see  Brant 
V.  Vincent,  100  Mich.  426,  59  N.  W.  169. 

19  5  Washb.  Real  Prop.  (5th  Ed.)  §  637. 

198  2  Tayl.  Landl.  &  Ten.  (8th  Ed.)  §  134;  Kingsbury  v.  Collins,  4  Bing.  202. 

197  2  Wood.  Landl.  &  Ten.  (2d  Ed.)  992;  1  Tayl.  Landl.  &  Ten.  (Sth  Ed.)  401. 
As  to  waste  by  a  tenant  from  year  to  year,  see  2  Wood,  Landl.  &  Ten.  (2d  Ed.) 
992;    Toniano  v.  Young,  6  Car.  &  P.  8. 

198  Bottiug  V.  Martin,  1  Camp.  317;  Cody  v.  Quarterman,  12  Ga.  386. 

199  Doe  V.  Porter,  3  Term  R.  13;  Cody  v.  Quaiterman,  12  Ga.  3S6;  Pugsley 
V.  Aikin,  11  N.  Y.  494. 

aooi  Washb.  Real  Prop.  (5th  Ed.)  637. 


S    93)  TENANCIES    FROM    YEAR   TO    YEAR TERMINATION.  161 


SAME— TERMINATION. 

93.  A  tenancy  from  year  to  year  may  be  terminated  by 
either  party  by  a  notice  given  six  months  before 
the  end  of  any  year ,  and  by  a  notice  equal  to  the 
length  of  the  periods  when  the  tenancy  is  for  pe- 
riods of  six  months  or  less.  But  these  rules  do  not 
apply  when  a  different  notice  has  been  provided 
for: 

(a)  By  agreement  of  the  parties. 

(b)  By  statute,  as  is  the  case  in  some  states. 

By  the  common  law,  to  terminate  a  tenancy  from  year  to  year 
there  must  be  a  six-months  notice  given  by  the  party  wishing  to 
terminate  the  tenancy.  This  notice  must  be  so  given  that  the  six 
months  will  expire  at  the  end  of  a  year.^"^  Most  eases  hold  that 
notice  equal  to  the  length  of  the  periods  is  requisite  in  case  of  ten- 
ancies measured  by  shorter  periods.='°='  The  time  of  notice  is  in 
many  states  regulated  by  statute,^"'  and  any  time  may  be  fixed 
by  the  agreement  of  the  parties.^"*  The  time  when  the  tenancy  is 
to  expire  must  be  clearly  indicated,  and  this  must  be  at  the  end  of 
one  of  the  periods."'     Unless  otherwise  provided  by  statute,  or  the 

301  Doe  V.  Watts,  7  Term  R.  83;  Jackson  v.  Bryan,  1  Johns.  (N.  Y.)  322; 
Den  V.  Drake,  14  N.  J.  Law,  523;  Morohead  v.  Watkyns.  :.  B.  Mon.  (Kyj 
228;  Critchfleld  v.  Remaley,  21  Neb.  178.  31  N.  W.  687;  Right  v.  Darby,  1 
Term  R.  159;  Bessell  v.  Landsberg,  7  Q.  B.  638.  But  see  Logun  v.  lierrou,  S 
Serg.  &  R.  (Pa.)  459. 

202  Steffens  v.  Earl,  40  N.  J.  Law,  128;  Sanfoid  v.  Harvey,  11  Cuish.  (Mass., 
93;  Prescott  v.  Elm,  7  Cush.  (Mass.)  346.  And  see  Gruenewald  v.  Schaales,  17 
Mo.  App.  324;    Doe  v.  Hazell,  1  Esp.  94. 

203  See  1  Stim.  Am.  St,  Law,  §  2052;  2  Shars.  &  B.  Lead.  Cas.  Real  Prop. 

2oa 

204  Woolsey  v.  Donnelly,  52  Hun,  614,  6  N.  Y.  Supp.  23a. 

205  Brown  v.  Kayser,  60  Wis.  1,  18  N.  W.  523;  Himter  ?.  Fmst.  47  Minn. 
1,  49  N.  W.  327;  Finkelsteln  v.  Herson,  55  N,  J.  Law,  217,  26  Atl.  688;  Stef- 
fens V.  Earl,  40  N.  J,  Law,  128;  Logan  v.  Herron.  8  Serg.  &  R.  (Pa.)  4ri9; 
Prescott  V.  Elm,  7  Cush.  (Mass.)  346;  Baker  v.  Adams,  5  Cush.  (Mass.)  99; 
Sanford  v.  Hai-vey,  11  Cush.  (Mass.)  93.  But  see  Currier  t.  Barker,  2  Gray 
(Mass.)  224. 

REAL  PROP.— 11 


162  ESTATES    AS    TO    QUANTITY LESS    THAN    FREEHOLD.  (Cll.   7 

agreement  of  the  parties,  the  notice  required  to  terminate  an  es- 
tate from  year  to  year  need  not  be  in  writing,"'  but  it  must  be 
certain  and  definite."^  The  notice  should  be  personally  served."' 
Although  the  tenancy  comes  to  an  end  at  the  expiration  of  the 
notice,"'  yet  the  parties  may  waive  the  effect,  and  continue  the 
relation.  This  may  be  done  by  express  agreement,""  or  by  acts 
showing  such  intention;"*  for  instance,  acceptance  by  the  land- 
lord of  rent  accruing  after  the  expiration  of  the  notice.^** 

LETTING  OF  LODGINGS. 

94.  A  letting  of  lodgings,  where  the  owner  of  the  house 
retains  possession  and  control,  creates  only  a  con- 
tract relation. 

The  hiring  of  furnished  apartments  creates  a  tenancy  from 
year  to  year;  that  is,  the  holding  is  from  week  to  week,  or  from 
month  to  month,  according  to  the  periods  at  which  rent  is  payable, 
when  the  terms  of  the  demise  are  indefinite."^    The  relation  of 

so 8  Timmlns  v.  RowUnson,  3  Burrows,  1603,  1  W.  BL  533;  Doe  v.  Cric^  5 
Esp.  1U6;   Eberlein  v.  Abel,  10  111.  App.  626. 

207  Doe  V.  Moi-phett,  7  Q.  B.  Div.  577;  Uoe  v.  Smith,  5  Adol.  &  E,  350;  Ayres 
V.  Draper,  11  Mo.  548;  Steward  v.  Harding,  2  Gray  (Mass.)  335;  Granger  v. 
Brown,  11  Gush.  (Mass.)  VJl;  Hanchett  v.  Whitney,  1  VL  311;  Huyser  v. 
Chase,   13  Mich.  102. 

208  Doe  V.  Williams,  6  Bam.  &  C.  41;  Jackson  v.  Baker,  10  Johns.  (N.  Y.) 
270.  But  see  Walker  v.  Sharpe,  103  Mass.  154;  BeU  v.  Binihn,  30  111.  App. 
800;  Doe  v.  Dunbar,  Moody  &  M.  10.  Notice  to  a  subtenant  Is  not  suffi- 
cient. Pleasant  v.  Benson,  14  East,  234.  It  Is  sufficient,  however,  if  actual 
knowledge  of  the  notice  is  shown,  for  the  required  length  of  time.  Alford  v. 
Vickery,  Car.  &  M.  280. 

209  Hoske  V.  Gentzlinger,  87  Hun,  3,  33  N.  Y.  Supp.  747. 

210  Supplee  V.  Timothy,  124  Pa.  SL  375,  16  Atl.  864. 

211  See  Tuttle  v.  Bean,  13  Mete.  (Mass.)  275;   Doe  v.  Palmer,  16  East,  53. 

212  Goodright  v.  Cordwent,  0  Term  II.  219;  Collins  v.  Canty,  6  Gush.  (Mass.) 
415;  Prindle  v.  Anderson,  19  Wend.  (N.  Y.)  391.  Mere  demand  of  rent  so  ac- 
cruing will  not  necessarily  be  a  waiver,  Blyth  v.  Dennett,  13  G.  B.  178;  nor 
acceptance  of  rent  due  before  the  expiration  of  the  notice,  Kimball  v.  Row- 
land, 6  Gray  (Mass.)  224;  Non-is  v.  Morrill,  43  N.  H.  213.  And  see  Graham  v. 
Dempsey,  1G9  Pa.  St  460,  32  Atl.  408;  Conner  v.  Jones,  28  Cal.  59. 

218  1  Wood.  Landl.  &  Ten.  (2d  Ed.)  132. 


§   96)  TENANCIES    AT   SUFFERANCE — CREATION. 


163 


landlord  and  tenant  does  not  arise,  however,  when  there  is  merely 
a  letting  of  lodgings."*  The  test  of  such  a  holding  is  the  re- 
tention by  the  owner  of  full  possession  and  control  of  the  house. 
In  such  cases  there  is  only  a  contract  relation.""^  The  letting  of 
"French  flats"  does  not  come  within  this  rule,  however;  for  they 
are  separate  dwellings,  and  the  hirer  is  a  lessee,  even  though  there 
Is  but  a  single  outer  door  to  the  building."'  Reasonable  notice  is 
all  that  is  necessary  to  terminate  the  holding  of  a  lodger."^ 

TENANCIES  AT  SUFFERANCE. 

95.  A  tenancy  at  sufferance  is  a  holding  of  lands  after  the 

expiration  of  a  previous  right  to  possession. 

SAME— CREATION. 

96.  For  the  creation  of  a  tenancy  at  sufferance,  the  tenant 

must  have   come  in   by  agreement,  and   not   as    a 
trespasser,  and  he  must  hold  without  agreement. 

Where  there  is  a  holding  over  by  one  whose  right  to  occupy  has 
expired,  a  tenancy  at  sufferance  arises;  ^^*  for  instance,  when  a 
tenant  for  years  continues  in  possession  after  the  end  of  his  term.^^* 
Such  person  must  have  come  in  originally  by  agreement,"**  and 

21*  As  to  who  are  lodgers,  see  Morton  v.  Palmer,  51  Law  J.  Q.  B.  7. 
216  Wilson  V.  MarUn,  1  Denio  (N.  Y.)  602;  White  v.  Maynard,  111  Mass.  250; 
Cochrane  v.  Tuttle,  75  III.  361. 

216  Musgrave  v.  Sherwood,  53  How.  Prac.  (N.  Y.)  311;  Young  v.  City  of 
Boston,  104  Mass.  93;  Porter  v.  Merrill,  124  Mass.  534;  Swain  v.  Mizner,  8 
Gray  (Mass.)  182. 

217  1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  78;  1  W^ood,  Landl.  &  Ten.  (2d  Ed.)  133. 
But  see  Huffell  v.  Armitstead,  7  Car.  &  P.  56. 

218  Doe  V.  Hull,  2  Dosol.  &  R.  38;  Russell  v.  Fabyan,  34  N.  H.  218;  Eichen- 
green  v.  Appel,  44  111.  App.  19;   Uridias  v.  Morrell,  25  Cal.  31. 

219  Jackson  v.  Parkhurst,  5  Johns.  (N.  Y.)  128;  Moore  v.  Smith  (N.  J.  Sup.) 
29  Atl.  159.  So  a  subtenant,  after  the  termination  of  the  original  lease,  Sim- 
kin  V.  Ashurst,  1  Cromp.,  M.  &  R,  261;  or  a  tenant  at  will,  whose  estate  has 
been  terminated,  Co.  Litt.  57b;  Benedict  v.  Morse,  10  Mete.  (Mass.)  223.  And 
see  Kinsley  v.  Ames,  2  Mete.  (Mass.)  29. 

220  Cook  V.  Norton,  48  111.  20.  So  the  entry  must  be  lawful.  Reckhow  v. 
Schanck,  43  N.  Y.  448;   Cunningham  v.  Holton,  55  Me.  33. 


164  ESTATES    AS    TO    QUANTITY LKSS    THAN    FREEHOLD.  (Ch.  7 

not  by  operation  of  law,  as  a  guardian,  who  becomes  a  trespasser 
by  continuing  to  hold  his  ward's  land  after  the  ward  is  of  age."^ 
Tliere  is  no  tenancy  at  sufferance  where  the  holding  over  is  by 
agreement,  express  or  implied."^'  And  a  tenant  at  sufferance 
may  at  any  time  become  a  tenant  at  will,  or  from  year  to  year,  by 
agreement  with  the  landlord."^  Payment  of  rent  makes  the  hold- 
ing a  tenancy  from  year  to  year. 


224 


SAME— INCIDENTS. 

97.  The  principal  incidents  of  a  tenancy  at  sufferance  are 
the  following: 

(a)  The  tenant  is  estopped  to  deny  the  landlord's  title. 

(b)  He  is  not  liable  for  rent. 

(c)  He  is  not  entitled  to  emblements. 

The  relation  of  landlord  and  tenant  obtains  in  a  tenancy  at 
sufferance  only  to  the  extent  that  the  tenant  is  not  permitted  to 
deny  the  landlord's  title."'  A  tenant  at  sufferance  is  not  liable 
for  rent,^2*  the  landlord's  remedy  being  an  action  for  use  and  oc- 
cupation."^ The  tenant  cannot  claim  emblements,  though  the 
landlord  terminates  the  tenancy  before  the  tenant  has  harvested  his 
£rop. 

321  Johnson,  J.,  In  Livingston  v.  Tanner,  14  N.  Y.  69. 

322  Johnson  v.  Carter,  IG  Mass.  443.  But  see  Landis'  Appeal.  13  Wkly. 
Notes  Cas.   226. 

223  Hoffman  v.  Clark,  G3  Mich.  175,  29  N.  W.  695;   Emmons  v.  Scudder,  115 
Mass.  367;   Den  v.  Adams,  12  N.  J.  Law,  99. 
2  24  Schuyler  v.  Smith,  51  N.  Y.  309. 
22  6  Gritfin  v.  Sheffield,  38  Miss.  390;    Jackson  v.  McLeod,  12  Johns.  (N.  Y.) 

182. 

2-.:6  2  Bl.  Coram.  150;  Flood  v.  Flood,  1  Allen  (Mass.)  217;  Delano  v. 
Montague,  4  Cash.  (Alass.)  42.  In  several  states  he  is  made  liable  for  rent 
by  statute.  1  Stim.  Am.  St.  Law,  §  2022.  And  see  Cofran  v.  Shepard,  148  Maas. 
682,  20  N.  E.  181.  In  many  states  a  tenant  who  holds  over  when  liis  interest  is 
ended,  and  after  demand  by  the  landlord,  becomes  liable  for  statutory  pen- 
alties.   1  Stim.  Am.  St.  Law,  §  2060;  2  Shars.  &  B.  Lead.  Cas.  Real  Prop.  123. 

227  ibbs  V.  Itichardson,  9  Add.  &  E.  849;  National  Oii-Rehuiug  Co.  v.  Bush, 
88  Pa.  St  3:^5;  Hogsett  v.  Ellis,  17  Mich.  351.  But  see  Merrill  v.  Bullock, 
105  Mass.   486. 


§  99)  LICENSES.  165 


SAME— TERMINATION. 

98.  A  tenancy  at    sufferance   may  be  terminated   at   any 

time,  by  either  party,  without  notice,  except: 
EXCEPTION" — In   some  states  a  notice   is   required   by 
statute. 

A  tenant  at  sufferance  is  entitled  to  no  notice  to  quit,'^'  except 
where  statutes  give  the  right.^^*  The  landlord  can  enter  at  any 
time,  and  thereafter  treat  him  as  a  trespasser,  though  he  cannot 
so  treat  him  before  entry  or  demand.*'**  There  is  a  conflict  in  the 
authorities  as  to  whether  the  landlord  may  expel  the  tenant  by 
force.  This  is  because  such  an  expulsion  may  be  criminal.^" 
The  better  opinion  seems  to  be  that  the  tenant  may  be  expelled, 
notwithstanding  the  fact  that  the  landlord  may  become  criminally 
liable  therefor."^*  But  there  will  be  no  civil  action  for  personal 
injuries  suJBfered  unless  more  force  than  necessary  was  used.^^^ 

LICENSES. 

99.  A  license   is  an  authority  to  do  specified   acts   on   the 

land  of  the  licensor.     A  license  is  not  an  estate,  and 
is  not  assignable. 

Licenses  are  created  either  by  express  agreement,  or  by  implica- 
tion.    An  example  of  the  latter  is  the  implied  license  granted  by 

22  8  Hooton  V.  Holt,  139  Mass.  54,  29  N.  E.  221;  Jackson  v.  Parkhurst,  5 
Johns.  (N.  Y.)  128;  Jackson  v.  McLeod,  12  Johns.  (N.  Y.)  182;  Livingston  v. 
Tanner,  14  N.  Y.  64.  And  see  Kinsley  v.  Ames,  2  Mete.  (Mass.)  29;  Benedict 
V.  Morse,  10  Mete.  (Mass.)  223. 

229  1  stim.  Am.  St  Law,  §  2050;  2  Shars.  &  B.  Lead.  Cas.  Real  Prop.  146. 
And  see  Minard  v.  Burtis,  83  Wis.  267,  53  N.  W.  509. 

230  1  \Yood,  Landl.  &  Ten.  (2d  Ed.)  26;   1  Tayl.  Landl.  &  Ten.  (8th  Ed.)  74, 

231  See  Clark,  Cr.  Law,  345. 

2  32  Wilde  V.  Cantillon,  1  Johns.  Cas.  (N.  Y.)  123;  Overdeer  v.  Lewis,  1 
Watts  &  S.  (Pa.)  90;  Allen  v.  Keily,  17  R.  I.  731,  24  Atl.  776;  Stearns  v. 
Sampson,  59  Me.  568;  Todd  v.  Jackson,  26  N.  J.  Law,  525.  Contra,  Reeder  v. 
Purdy,  41  111.  279;  Wilder  v.  House,  48  111.  279;  Dustin  v.  Cowdry,  23  Vt. 
631. 

288  Sampson  v.  Henry,  13  Pick.  (Mass.)  36;  Adams  v.  Adams,  7  Phila,  (Pa.) 
160. 


1G6  ESTATES    AS    TO    QUANTITY — LESS    THAN    FREEHOLD.  (Ch.  7 

all  business  men  to  the  public  to  enter  tbeir  stores  or  offices  during 
business  hours. ^^*  So  a  license  may  be  implied  from  other  acts 
or  representations  of  the  owner  of  land.^^''  A  license  gives  no  in- 
terest in  the  land,  but  is  merely  a  personal  right.^'^  It  differs  from 
a  lease  of  land  chiefly  in  that  the  owner  retains  the  possession  of 
the  land."^  The  effect  of  a  license  is  to  permit  the  licensee  to  do 
acts  upon  the  land  which  would  otherwise  be  trespass.''^*  The 
grant  of  a  license  carries  with  it  the  right  to  use  the  necessary 
and  proper  means  to  accomplish  the  object.-"^  The  licensee  is  lia- 
ble for  all  damages  resulting  from  negligent  or  improper  execu- 
tion of  the  license,""  but  not  for  damages  which  are  the  natural 
result  of  the  acts  licensed.^* ^  A  license  is  purely  personal,  and  can- 
not be  assigned  by  the  licensee.^*^     So  a  sale  of  the  land  by  the 

23  4  Gibson,  C.  J.,  in  Gowen  v.  Exchange  Co..  5  Watts  &  S.  (Pa.)  143.  And 
see  Kay  v.  Railroad  Co.,  65  Pa.  St.  273;  Cutler  v.  Smith,  57  111.  252;  Sterling 
V.  Warden,  51  N.  H.  217;  Heaney  v.  Heeney,  2  Denio  (N.  Y.)  625.  So  a  sale 
of  chattels  gives  an  implied  license  to  enter  to  remove  them.  Wood  v.  Mau- 
ley, 11  Adol.  &  E.  34. 

23  5  So  there  is  an  ina plied  license  to  go  to  a  private  residence  to  make  social 
calls.  Martin  v.  Houghton,  145  Barb.  (N.  Y.)  258;  Adams  v.  Freeman,  12 
Johns.   (N.  Y.)  40S.     And  see  Gibson  v.  Leonard,  143  111.  1S2,  32  N.  E.  182. 

236  Mumford  v.  Whitney,  15  Wend.  (N.  Y.)  381;  Dolittle  v.  Eddy,  7  Bajb.  (N. 
Y.)  74;  Ex  parte  Coburn,  1  Cow.  (N.  Y.)  568;  Blaisdell  v.  Railroad  Co.,  51  N. 
H.  483. 

2  37  Funk  V.  Haldetuan,  .53  Pa.  St.  229.  And  see  HoUaday  v.  Power  Co.,  55 
111.  App.  4G3;  Kabley  v.  Liglit  Co.,  102  Mass.  392;  Smith  v.  Simons,  1  Root 
(Conn.)  318;  Haywood  v.  Fulmer  (Ind.  Sup.)  32  N.  E.  574.  A  license  differs 
from  an  easement  in  not  being  created  by  deed.  Morse  v.  Copeland,  2  Gray 
(Mass.)  302;  Mumford  v.  Whitney,  15  Wend.  (N.  Y.)  381;  Wiseman  v.  Luck- 
singer,  84  N.  Y.  31;  Wolfe  v.  Frost,  4  Sandf.  Ch.  (N.  Y.)  72;  Foot  v.  New 
Haven  &  Northampton  Co.,  23  Conn.  214.  Cf.  W.  U.  Tel.  Co.  v.  BuUard,  67 
Vt.  272,  31  Atl.  280. 

238  Blaisdell  v.  Railroad  Co.,  51  N.  H.  483;  Sterling  v.  Warden,  Id.  217; 
Miller  v.  Railway  Co.,  6  Hill  (N.  Y.)  61. 

239  Com.  V.  Iligney,  4  Allen  (Mass.)  310;  Driscoll  v.  Marshall,  15  Gray 
(Mass.)  62.  As  to  employ  men  to  help  remove  a  ponderous  object  from  the 
licensor's  land.    Sterling  v.  Warden,  51  N.  H.  217. 

240  Selden  v.  Canal  Co.,  29  N.  Y.  634;  Eaton  v.  Winnie,  20  Mich.  156;  Mc- 
Knight  v.  RatcliEf,  44  Pa.  St.  156;  Dean  v.  McLean,  48  Vt.  412. 

241  Selden  v.  Canal  Co.,  29  N.  Y.  634. 

«*2  Mumford  y.  Whitney,  15  Wend.  (N.  Y.)  381;   Mendenhall  v.  Klinck,  51 


§    100)  REVOCATION    OF    LICENSES.  167 

licensor  puts  an  end  to  the  authority."'  A  license  is  also  ter- 
minated by  the  death  of  either  party,"*  and  by  the  expiration  of 
the  time  for  which  it  is  given.*** 

SAME— BSVOCATION  OP  LICENSES. 

100.  liicenses  are  revocable  in  all  cases,  except: 
EXCEPTIONS— (a)  Wlien  coupled  with  an  interest. 

(b)  When  affecting  only  an  easement  of  the  licensor. 

(c)  In  some   states,  when  the  licensee,  relying   on  the 

license,  has  erected  improvements  on  the  licensor's 
land. 

The  general  rule  is  that  licenses  ai'e  revocable."*  But  a  license 
coupled  with  an  interest  is  not.  For  example,  if  personal  prop- 
erty is  sold,  and  a  license  given  to  go  upon  the  land  of  the  vendor 
to  remove  the  goods,  it  cannot  be  revoked.^*^  A  license  to  do 
acts  which  obstruct  or  destroy  an  easement  of  the  licensor  cannot 
be  revoked  after  it  is  executed."*  There  is  great  conflict  in  the 
cases  as  to  the  power  to  revoke  a  license  after  the  licensee  has  ex- 
pended moneyor  erected  improvements  onthe  land  of  the  licensor.*** 

N.  Y.  246;    Jackson  v.  Babcock,  4  Johns.  (N.  Y.)  418;    De  Haro  v.  U.  S.,  5 
Wall.  599. 

243  Blaisdell  v.  Railroad  Co.,  51  N.  H.  483. 

244  Prince  V.  Case,  10  Conn.  375;  Blaisdell  v.  Railroad  Co.,  51  N.  H.  483. 
Or  by  the  Insanity  of  the  licensor.     Berry  v.  Potter  (N.  J.  Ch.)  29  Atl.  323. 

245  Detroit  &  B.  Plank-Road  Co.  v.  Detroit  S.  Ry.  Co.,  103  Mich.  585,  01 
N.  W.  880.  A  conveyance  of  the  land  by  the  licensor  will  be  a  revocation. 
Jackson  v.  Babcock,  4  Johns.  (N.  Y.)  418. 

2i«5  Baldwin  v.  Taylor,  IGti  Pa.  St.  507,  31  Atl.  250;  Bass  v.  Power  Co.,  Ill 
N.  0.  439,  16  S.  B.  402;  Minneapolis  W.  Ry.  v.  Minneapolis  &  St  L.  Ry.  Co., 
58  Minn.  128,  59  N.  W.  983;  Kremer  v.  Railway  Co.,  51  Minn.  15,  52  N.  W. 
»77. 

24T  Wood  V.  Manley,  11  Adol.  &  E.  34;  Carter  v.  Wingard,  47  111.  App.  296. 
But  see  Fish  v.  Capwell  (R.  L)  29  Atl.  840.  It  may  be  lost  by  abandonment 
Patterson  v.  Graham,  164  Pa.  St.  234,  30  Atl.  247. 

248  Dyer  v.  Sanford,  9  Mete.  (Mass.)  395;  Morse  v.  Copeland,  2  Gray  (Mass.) 
302;    Addison  v.  Hack,  2  Gill  (Md.)  221. 

249  As  holding  such  a  license  irrevocable,  see  Flickinger  v.  Shaw,  87  Cal. 
126,  25  Pac.  268;  Grimshaw  v.  Belcher,  88  Cal.  217,  26  Pac.  84;  Nowlin  v. 
Whipple,  120  Ind.  596,  22  N.  E.  669;   Saucer  v.  Keller,  129  Ind.  475,  28  N.  B. 


16.S  K.STATES    AS    TO    QUANTITY LESS    THAN    FREEHOLD.  (Ch.  7 

The  difiiculty  is  that  if  the  license  is  held  irrevocable  the  effect 
is  to  transfer  an  interest  in  realty  by  parol. ^"^^  Some  courts  hold 
the  licensor  estopped  to  revoke."^  Others  require  him  to  place  the 
licensee  in  statu  quo,  by  compensating  him  for  his  expenditures.^"' 
Where  the  license  is  in  the  nature  of  a  contract  for  a  definite  time, 
the  licensee  is  protected  by  awarding  him  specific  performance.'"* 
In  some  states  all  licenses  are  held  to  be  revocable,'"*  and  the 
licensee  without  remedy.'"" 

1117;  Messick  v.  Railway  Co.,  128  Ind.  81,  27  N.  E.  419;  McBroom 
V.  'rhonii)son,  2,")  Or.  55<J,  37  Pac.  57;  Duke  of  Devonshire  v.  Eglin, 
14  Beav.  530;  Rerlck  v.  Kern,  14  Serg.  &  R.  267;  White  v.  Railway  Ck).,  139 
N.  Y.  19,  34  N.  E.  887.  Cf.  City  Council  of  Augusta  v.  Burum,  93  Ga.  68,  19 
S.  E,  820.  Contra,  Village  of  Dwight  v.  Hayes,  150  lU.  273,  37  N.  E.  218; 
Crosdale  v.  Lanigan,  129  N.  Y.  604,  29  N.  B.  824;  Lawrence  v.  Springer,  49 
N.  J.  Eq.  289,  24  Atl.  933;  Minneapolis  Mill  Co.  v.  Minneapolis  &  St.  L.  Ry. 
Co.,  51  Minn.  304,  53  N.  W.  639. 

250  Wood  V.  Leadbitter,  13  Mees.  &  W.  838;  Bridges  v.  Purcell,  1  Dev.  & 
B.  (N.  C.)  482. 

«Bi  Risien  V.  Brown,  73  Tex.  135,  10  S.  W.  661;  School  Dist  v.  Lindsay,  47 
Mo.  App.  134;  Rhodes  v.  Otis,  33  Ala.  578.  But  see  Churchill  v.  Hulbert,  110 
Mass,  42;    Lake  Erie  &  W.  R.  Co.  v.  Kennedy,  132  Ind.  274,  31  N.  E.  943. 

2B2  Addison  v.  Hack,  2  Gill  (Md.)  221;  Woodbury  v.  Parshley,  7  N.  H.  237. 
The  licensee  has  in  all  cases  a  reasonable  time  to  remove  his  property  from 
the  land  after  the  revocation.     Barnes  v.  Barnes,  6  Vt.  388. 

2BS  wiUlamston  &  T.  Ry.  Co.  v.  Battle,  66  N.  C.  540;  Veghte  v.  Power 
Co.,  19  N.  J.  Bq.  142. 

«B4  carley  v.  GltcheU  (Mich.)  62  N.  W.  1003;  Shirley  v.  Crabb,  138  Ind.  200, 
37  X.  E.  loU.  A  ticket  to  a  theater  is  a  license,  aud  may  be  revoked,  McCrea 
T.  Marsh,  12  Gray  (Mass.)  211;  or  to  a  horse  race,  Wood  v.  Leadbitter,  13 
Mees.  &  W.  838. 

26B  pitzman  v.  Boyce,  111  Mo.  387,  19  S.  W.  1104;  Crockett  v.  Railway  Co.. 
80  Tex,  292,  16  S.  W.  38;  Hodgkins  v.  Farrington,  150  Mass.  19,  22  N.  E.  73; 
Shirley  v.  Crabb,  138  Ind.  200,  37  N.  E.  130;   Fentiman  v.  Smith,  4  East,  107. 


§    102)  KSTATES    AS   TO    QUALITY CONDITIONS LIMITATIONS.  169 

CHAPTER  Vm. 

ESTATES  AS   TO    QUALITY— ON   CONDITION— ON   LIMITATION. 

101.  Estates  as  to  Quality. 

102.  Estates  on   Condition. 

1(»-104.  Conditions    Precedent    and    Subsequent. 

105.  Void  Conditions. 

106.  Termination  of   Estates   on   Condition. 

107.  Who  cau  Enforce  a  Forfeiture. 

108.  Estates  on   Limitation. 

109.  Base  or  Determinable  Fees. 

ESTATES  AS  TO  QUALITY. 

101.  Estates  as  to  quality  are  either  absolute  or  qualified. 

Qualified  estates  will  be  treated  under  the  following 
heads: 

(a)  Estates  on  condition  (p.  169). 

(b)  Estates  on  limitation  (p.  177). 

ESTATES  ON  CONDITION. 

102.  An  estate  on  condition  is  one  which  is  created  or  de- 

feated, enlarged   or  diminished,  on  the  happening 
of  a  contingency. 

102a.  A  mortgage  is  an  estate  on  condition  (p.  180). 

Heretofore  estates  have  been  considered  with  reference  to  their 
quantity.  The  consideration  of  estates  as  to  their  quality  intro- 
duces a  new  principle  of  classification.  Estates  may  be  absolute, 
as  has  been  the  case  with  the  estates  considered  in  the  preceding 
chapters,  or  they  may  be  qualified  or  defeasible;  that  is,  any  of  the 
estates  as  to  quantity,  estates  in  fee  simple,  life  estates,  etc.,  may 
be  held  subject  to  a  condition.^     The  owner  of  an  estate  in  lands 

1  That  the  statute  of  quia  emptores  does  not  render  conditions  attached  to 
fees  invalid,  see  Gray,  Perp.  19;  Van  Rensselaer  v.  Ball,  19  N.  Y.  100;  Van 
Rensselaer  v.  Dennison,  35  N.  Y.  393.     The  words  usually  employed  in  an  In- 


170  ESTATES    A3    TO    QUALITY CONDITIONS ^LIMITATIONS.  C^h.    8 

may  have  his  interest  modified  or  destroyed  by  the  happening  of  an 
event  which  may  or  may  not  occur.^  So  the  vesting  of  an  estate 
may  depend  on  such  a  contingency.  The  existence  of  such  a  condi- 
tion does  not  affect  the  owner's  powers  of  dealing  with  his  estate. 
He  may  use  the  land,  sell  or  mortgage  it,  just  as  if  his  interest  was 
absolute  instead  of  qualified."  But  any  alienation  or  incumbrance 
wiU  be  defeated  if  the  estate  is  terminated  by  the  happening  of  the 
contingency  on  which  it  depends.* 

SAME— CONDITIONS  PRECEDENT  AND  SUBSEQUENT. 

103.  Conditions  are  divided  into  two  classes; 

(a)  Conditions  precedent. 

(b)  Conditions  subsequent. 

Btrument  of  conveyance  to  create  a  condition  are  "on  condition,"  "provided," 
"so  tliat,"  and  "if  it  so  happen."  Co.  Litt  203b,  204b;  Stanley  v.  Colt,  5 
Wall.  119;  BigelGW,  C.  J.,  in  Kawson  v.  Scliool  Dist.,  7  Allen  (Mass.)  125;  Gi-ay 
V.  Blanchard,  8  Pick.  (Mass.)  284;  Warner  v.  Bennett,  31  Conn.  468;  Hooper 
V.  Cummlngs,  45  Me.  359.  The  use  of  these  words  Is  not  essential,  for  a  con- 
dition may  be  raised  by  any  words  which  show  such  an  intention.  Hapgood 
V.  Houghton,  22  Pick.  (Mass.)  480;  Attorney  General  v.  Merrimack  Manuf'g 
Co.,  14  Gray  (Mass.)  586;  W^attera  v.  Bredin,  70  Pa.  St  235;  Underbill  v. 
Railroad  Co.,  20  Barb.  (N.  Y.)  455;  Gibert  v.  Peteler,  38  N.  Y.  165;  Worman 
V.  Teagarden,  2  Ohio  St.  380;  Wheeler  v.  Walker,  2  Conn.  196;  Bacon  v. 
Huntington,  14  Conn.  92.  But  see  Packard  v.  Ames,  16  Gray  (Mass.)  327; 
Jennings  v.  O'Brien,  47  Iowa,  392;  Gadberry  v.  Sheppard,  27  Miss.  203.  Nor 
does  the  use  of  the  words  given  in  all  cases  raise  a  condition.  Episcopal  City 
Mission  v.  Appleton,  117  Mass.  826;  Sohier  v.  Trinity  Church,  109  Mass.  1; 
Chapiu  V.  Han-is,  8  Allen  (Mass.)  594,  Estates  on  condition  may  be  created 
by  will  or  deed.  Wheeler  v.  Walker,  2  Conn.  196.  In  some  states  it  is  pro- 
vided by  statute  that  conditions  merely  nominal  shall  be  disregarded.  1 
Stim.  Am.  St.  Law,  §  1361;   1  Shars.  &  B.  Lead.  Cas.  Real  Prop.  136. 

2  Mr.  Washburn  treats  in  this  connection  the  interest  which  is  acquired 
in  land  by  its  sale  for  debts,  and  calls  such  an  interest  an  "estate  on  execu- 
tion." Where,  as  in  most  states,  the  debtor  has  a  period  within  which  he 
can  redeem,  the  Interest  acquired  by  the  execution  purchaser  Is  liable  to 
be  defeated  by  such  a  redemption.    2  Washb.  Real  Prop.  (5th  Ed.)  31. 

8  Taylor  v.  Sutton,  15  Ga.  103;  Shattuck  v.  Hastings,  99  Mass.  23;  Chap- 
man V.  Pingree,  67  Me.  198.  But  see  Slegel  v.  Lauer,  148  Pa,  St.  236,  23  AtL 
996. 

*  Gray  v.  Blanchard,  8  Pick.  (Mass.)  284. 


■§§    103-104)        CONDITIONS    PRECEDENT    AND   SUBSEQUENT.  171 

103a.  Conditions  precedent  are  conditions  -which  must  be 
fulfilled  before  the  estate  to  which  they  are  attached 
can  vest. 

104.  Conditions  subsequent  are  conditions  upon  the  fulfill- 
ment or  nonfulfillment  of  -which  an  estate  pre- 
viously vested  is  defeated. 

Conditions  precedent  are  such,  as  go  before  the  estate  to  which 
they  apply;  that  is,  the  happening  of  the  event  provided  for  in  the 
condition  creates  an  estate,  or  enlarges  one  already  existing.'  If 
the  contingency  does  not  occur,  the  conveyance  containing  the  con- 
dition never  becomes  operative.*  A  condition  subse<iuent  dimin- 
ishes or  destroys  the  estate  to  which  it  is  attached.'     The  distinc- 

»  Upington  v.  Corrigan,  69  Hun,  320,  23  N.  Y.  Supp.  451;  In  re  Howard's 
Estate,  5  Misc.  Rep.  295,  25  N.  Y.  Supp.  1111;  Richards  v.  Richards,  DO  Iowa, 
606,  58  N.  W.  926;  Hurd  v.  Shelton,  64  Conn,  496,  80  Atl.  766;  Moore  v. 
Perry,  42  S.  C.  369,  20  S.  B.  200;  C51ty  of  Stockton  v.  Weber,  98  Cal.  433,  33 
Pac.  332;  Tilley  v.  King,  109  N.  C.  461,  13  S.  E.  936.  Examples  of  conditious 
precedent  are:  That  a  devise  shall  not  vest  until  the  devisee's  debts  are  paid- 
Nichol  V.  Levy,  5  Wall.  433.  That  a  child  shall  be  born  to  the  grantees. 
Karchner  v.  Hoy,  151  Pa.  St  383,  25  Atl.  20.  That  a  devisee  shall  abstain 
from  the  use  of  intoxicating  liquors  for  five  years.  In  re  Steven's  EJstate, 
164  Pa.  St.  209,  30  Atl.  243.  That  the  grantee  support  the  grantors  during 
their  lives.     Lashley  v.  Souder  (N.  J.  Ch.)  24  Atl.  919. 

«  Donohue  v.  McNichol,  61  Pa,  St.  73;  Mizell  v.  Burnett,  4  Jones  (N.  C.)  249. 

7  Rice  V.  Railroad  Corp.,  12  Allen  (Mass.)  141;  Harrison  v.  Foote  (Tex.  Civ- 
App.)  30  S.  W.  838;  aiills  v.  Railway  Co.,  10  W^ash.  520,  39  Pac.  246;  Reichen- 
bach  V.  Railway  Co.,  10  W^ash.  357,  38  Pac.  1126;  Bank  of  Suisun  v.  Stark,  106 
Cal.  202,  39  Pac.  531;  Ritchie  v.  Railway  Co.,  55  Kan.  36,  39  Pac.  718;  Mc- 
Clure  V.  Cook,  39  W.  Va.  579,  20  S.  E.  612.  But  see  Baker  v.  Mott,  78  Hun, 
141,  28  N.  Y.  Supp.  908;  Kilpatrick  v.  Baltimore,  81  Md.  179,  31  Atl.  805; 
Studdard  v.  Wells,  120  Mo.  25,  25  S.  W.  201;  Ely  ton  Land  Co.  v.  South  & 
North  Alabama  R.  Co.,  100  Ala.  396,  14  South.  207.  The  following  are 
conditions  subsequent:  Devise  of  real  estate  to  a  town  for  the  pui-pose  of 
building  a  school  house,  "provided  it  is  built  within  100  rods  of  the  place 
where  the  meetinghouse  now  stands,"  Hayden  v.  Stoughton,  5  Pick.  (Mass.) 
528.  Devise  to  A,  and  his  heirs,  if  he  live  to  21.  Edwards  v.  Hammond,  8 
Lev.  132.  Devise  to  one  provided  he  supports  the  grantor  for  life.  Spauld- 
Ing  V.  Hallenbeck,  39  Barb.  (N.  Y.)  79.  That  the  land  conveyed  shall  not  be 
used  for  certain  pui-poses,  Hayes  v.  Railway  Co.,  51  N.  J.  Eq.  345,  27  AtL 
&i8;    Odessa  Imp.  &  Irr.  Co.  v.  Dawson,  5  Tex.  Civ.  App.  487,  24  S.  W.  576; 


172  ESTATES    AS    TO    QUALITY CONDITIONS LIMITATIONS,  (Ch.   8 

tion  between  conditions  precedent  and  subsequent  depends  on  the 
intention  of  the  parties,  and  the  attendant  circumstances.'  The 
courts,  however,  construe  conditions  as  subsequent,  rather  than  as 
precedent.*  Thus  it  is  held,  in  cases  of  doubt,  that  an  estate  vests 
at  once,  subject  to  be  defeated  by  nonperformance  of  conditions, 
rather  than  that  the  grantee  must  perform  before  he  is  entitled  to 
the  estate.^'  The  time  within  which  the  condition  must  be  per- 
formed is  usually  expressly  stated,  but,  if  it  is  not,  the  grantee  has  a 
reasonable  time,"  or  his  whole  life,  according  to  the  circumstances 
of  the  case,  and  the  probable  intention  of  the  pai'ties.** 

SAME— VOID  CONDITIONS. 

105.  Conditions  "wrhich  are  illegal  or  impossible  of  perform- 
ance are  void,  and  when  precedent,  prevent  estates 
depending  on  them  from  vesting,  but,  -when  subse- 
quent, are  of  no  effect. 

Not  all  conditions  which  may  be  imposed  are  valid.  A  condition 
may  be  invalid  because  its  performance  is  impossible,^'  or  because 
it  is  illegal.  The  illegal  conditions  most  frequently  imposed  are 
those  in  restraint  of  alienation  and  of  marriage.  Conditions  in  re- 
straint of  alienation  w^ill  be  discussed  in  a  subsequent  chapter.^* 

Hopkins  V.  Smith,  1G2  Mass.  444,  38  N.  E.  1122  (but  see  Jonks  v.  Pawlowski, 
98  Mich.  110,  5(J  N.  W.  1105);  or  shall  be  built  upon  only  in  a  certain  manner,. 
Ogontz  Land  &  Imp.  Co.  v.  Johnson,  168  Pa.  St.  178,  31  Atl.  1008;  Reardon  y. 
Murphy,    1(>3    Mass.   501,    40    N.    E.    854. 

«  UndiThill  V.  Itailway  Co.,  20  Barb.  (N.  Y.)  455;  Burnett  v.  Strong,  26  Miss, 
116;  .Juni's  V.  Railway  Co.,  14  W.  Va.  514. 

»  Maitin  v.  Ballon,  13  Barb.  (N.  Y.)  119;  Bell  Co.  v.  Alexander,  22  Tex.  350. 
And  see  Webster  v.  Cooper,  14  How.  488;  Taylor  v.  Mason,  9  Wheat  325; 
Sackett  v.  Mallory,  1  Mete.  (Mass.)  355;   Tallman  v.  Snow,  35  Me.  342. 

10  Fiulay   v.   Mitchell,   3   Pet.   346. 

11  Hamilton  v.  Elliott,  5  Serg.  &  R.  375;  Allen  v.  Howe,  105  Mass.  241. 
As  in  a  case  where  he  is  to  pay  off  a  mortgage,  no  time  being  expressed. 
Rowell  V.  Jewett,  69  Me.  293. 

12  Marshall,  C.  J.,  in  Finlay  v.  King,  3  Pet.  346. 

13  A  condition  may  become  impossible  by  act  of  God,  Thomas  v.  Howell,  1 
Salk.  170;  or  by  act  of  law,  Board  of  Com'rs  of  Mahoning  Co.  v.  Young,  8  G. 
C.  A.  27,  59  Fed.  96;   Scovill  v.  McMahon,  62  Conn.  378,  26  AtL  479. 

1*  See  post,  394.    Jenher  v.  Gumer,  16  Ch.  Div.  188;    Hodgson  v,  Halford, 


§    105)  VOID    CONDITIONS. 


173 


General  conditions  in  restraint  of  marriage  are  void.  Partial  re- 
strictions on  marriage,  such  as  not  to  marry  a  named  person,  or  any 
one  of  a  named  family,  are  generally  sustained,  even  without  a  lim- 
itation over,  but  are  narrowly  interpreted;  "  and  so  as  to  conditions 
against  marrying  without  consent  of  parents,  or  of  those  who  stand 
in  loco  parentis.^  ^ 

Where  a  gift  or  devise  is  made  to  an  unmarried  woman,  with  a 
condition  that  the  estate  shall  cease  upon  marriage,  the  condition, 
being  in  restraint  of  marriage,  is  said  to  be  against  the  policy  of  the 
law;  and  it  has  generally  been  held  that,  unless  the  instrument  im- 
posing the  condition  says  also  to  whom  the  estate  shall  go  in  case 
of  disobedience,  the  condition  is  deemed  to  have  been  inserted  in 
terrorem  only,  and  may  be  disregarded.  Here  is  a  distinction 
against  the  heirs  of  the  donor,  and  in  favor  of  the  strangers  whom 
he  may  name  by  way  of  conditional  limitation,  for  which  no  good 
reason  can  be  given,  but  which  seems  to  be  well  established,  for  the 
cases  are  very  rare  in  which  the  condition  without  limitation  over 
has  been  deemed  valid.  ^^ 

A  vo-id  condition,  if  precedent,  prevents  the  estate  depending  on  it 
from  vesting  at  all;^^  but,  if  subsequent,  the  condition  is  of  no 
€ffect,  and  the  estate  becomes  absolute.^* 

11  Oh.  Div.  959;  Graydon's  Ex'rs  v.  Graydon,  23  N.  J.  Eq.  229;  Phillips  v. 
Ferguson,  85  Va.  509,  8  S.  E.  241;  Hogan  v.  Curtin,  88  N.  Y.  162;  Keily  v. 
Monck,  3  Ridg.  App.  205;    Maddox  v.  Maddox's  Adm'r,  11  Grat  (Va,)  804. 

IB  Phillips  V.  Ferguson,  85  Ya.  509,  8  S.  E.  241. 

18  Dentield,  Petitioner,  156  Mass.  265,  30  N.  E.  1018. 

17  Otis  V.  Prince,  10  Gray  (Mass.)  581.  For  other  conditions  which  have 
t>eeD  held  illegal,  see  Newkerk  v.  Newkerk,  2  Gaines  (N.  Y.)  345;  Brown  v. 
Peck,  1  Eden.  140;   Wren  v.  Bradley,  2  De  Gex  &  S.  49. 

18  Roundel  v.  Currer,  2  Brown,  Ch.  67;  Priestley  v.  Holgate,  3  Kay  &  J. 
286.     But  see  In  re  Moore,  39  Ch.  Div.  116. 

i»  Thomas  v.  Howell,  1  Salk.  170;  Lowther  v.  Cavendish,  1  Eden,  99;  Pey- 
ton v.  Bury,  2  P.  Wms.  626;  CoUett  v.  Collett,  35  Beav.  312;  Booth  v.  Meyer, 
38  Law  T.  (N.  S.)  125;  O'Brien  v.  Barkley,  78  Hun,  609,  28  N.  Y.  Supp.  1040; 
Hoss  V.  Hoss,  140  Ind.  551,  39  N.  E.  255. 


174  ESTATES    AS    TO    QUALITY — CONDITIONS LIMITATIONS.  (Ch.   8 


SAME— TERMINATION  OF  ESTATES  ON  CONDITION. 

106.  An  estate  on  conditions  subsequent  is  not  determined 
by  a  breach   of  condition  until  there  has  been  an 
entry,  except: 
EXCEPTIONS — (a)  Commencing  an  action  of  ejectment 

is  equivalent  to  an  entry. 
(b)  If  the  grantor  is  in  possession,  the  forfeiture  is  com- 
plete -w^hen  a  breach  occurs. 

106a.  An  estate  on  condition  may  come  to  a  natural  ter- 
mination -without  a  breach  of  the  condition. 

The  breach  of  a  condition  gives  the  grantor  an  option  to  terminate 
the  estate.^"  This  he  can  do  only  by  an  entry,^^  but  no  previous 
demand  of  performance  is  necessary."  The  technical  action  of 
ejectment  has  the  same  effect,  because  an  entry  is  held  to  be  con- 
fessed." WTien,  however,  the  grantor  is  in  possession  at  the  time 
a  breach  occurs,  the  forfeiture  is  complete  without  any  act  on  his 

20  It  is  not  necessary  that  any  damage  to  the  grantor  has  been  caused  by 
the  breach.  Sioux  City  &  St.  P.  R.  Ck).  v.  Singer,  49  Minn.  301,  51  N.  W. 
905.  The  grantee  cannot  insist  that  he  has  forfeited  his  estate  by  a  breach. 
Davenport  v.  Reg.,  3  App.  Cas.  115;  Rede  v.  Farr,  6  Maule  &  S.  121.  As  to 
what  constitutes  a  breach,  see  Razor  v.  Razor,  14ii  111,  375,  31  N.  E.  678; 
Rose  V.  Hawley,  141  N,  Y.  3(;G,  36  N.  E.  335;  City  of  Quincy  v.  Attorney 
General,  160  Mass.  431,  35  N.  E.  1066;  Hurto  v.  Grant,  90  Iowa,  414,  57  N.  W. 
899;  Crawford  v.  Weam,  115  N.  C.  540,  20  S,  E.  724;  Madigan  v.  Burns  (N. 
H.)  29  Atl.  454. 

21  Warner  v.  Bennett,  31  Conn.  4G8;  Bowen  v.  Bowen,  18  Conn.  535;  Hub- 
bard V.  Hubbard,  97*  Mass.  188;  Guild  v.  Richards,  16  Gray  (Mass.)  300; 
Adams  v.  Lindell,  5  Mo.  App.  197;  Kenner  v.  Contract  Co.,  9  Bush  (Ky.) 
202;  Tallman  v.  Snow,  35  Me.  342;*Sperry  v.  Sperry,  8  N.  H.  477;  Memphis 
&  C.  R.  Co.  V.  Neighbors,  51  Miss.  412;  Phelps  v.  Chesson,  12  Ired.  (N.  0.) 
194.  But  see  Schlesinger  v.  Railroad  Co.,  152  U.  S.  444,  14  Sup.  Ct.  647.  A 
right  of  entry  need  not  be  expressly  reserved.  Gray  v.  Blanchard,  8  Pick. 
(Mass.)  284;   Thomas  v.  Record,  47  Me.  500. 

2  2  Hamilton  v.  Elliott,  5  Serg.  &  R,  (Pa.)  375. 

23  Ruch  V.  Rock  Island,  97  U.  S.  693;  Jackson  v.  Crysler,  1  Johns.  Cas. 
(N.  Y.)  125;  Cornelius  v.  Den,  26  N.  J.  Law,  376.  After  seeking  to  enforce 
a  forfeiture  by  ejectment,  the  lessor  cannot  sue  for  rent  subsequently  ac- 
cruing.    Jones  V.  Carter,  15  Mees.  &  W.  718. 


§    106)  TERMINATION    OF    ESTATES    ON    CONDITION.  175 

part,"  unless  he  elects  otherwise."  The  performance  of  a  condi- 
tion maj  be  waived,  and  a  breach  would  then  not  work  a  forfei- 
ture.-* Or  after  a  breach  has  occurred  the  forfeiture  may  be  waived 
by  express  agreement,  or  by  acts  of  the  grantor  having  the  same 
effect;  "  for  instance,  accepting  performance  of  the  condition  at  a 
subsequent  time.^^  Such  waiver  cuts  off  the  right  to  claim  a  for- 
feiture," but  not  the  right  to  an  action  for  a  breach  of  covenant  in 
a  proper  case."*  Mere  delay  to  enforce  the  forfeiture  will  not  con- 
stitute a  waiver,^ '^  and  acquiescence  in  a  breach  will  not  bar  the  right 
to  a  forfeiture  for  a  subsequent  breach. ''^  Equity  sometimes  re- 
lieves from  forfeitures  for  breach  of  conditions,  where  the  breach 
is  due  to  accident,  and  the  grantor  can  be  compensated  by  damages 
as  by  the  payment  of  a  sum  of  money  with  interest.^'     But  other- 

24  Slieaffer  v,  Sheaffer,  S7  Pa,  St.  525;  President,  etc.,  of  Lincoln  &  K. 
Banli  V.  Drummond,  5  Mass.  322;  Collins  v.  Eiley,  44  N.  H.  9;  Wiilard  v. 
Olcott,  2  N.  H.  120;  Guffy  v.  HuklU,  34  W.  Va.  49,  11  S.  E.  754;  Andrews 
v.  Senter,  32  Me.  394.     But  see  Stone  v.  Ellis,  9  Cusli.  (Mass.)  95. 

» 6  Andrews  v.  Senter,  32  Me.  394;   Wiilard  v.  Olcott,  2  N.  H.  120. 

««  Jones  V.  Doe,  2  111.  27G;  Lamb  v.  Miller,  18  Pa.  St.  448;  Petro  v.  Cassiday, 
13  lud.  289;  Boone  v.  Tipton,  15  Ind.  270;  Jones  v.  Railway  Oo.,  14  W.  Va. 
514;  Jones  v.  Walker,  13  B.  Mon.  (Ky.)  163.  So  a  license  excusing  a  breach 
as  to  part  of  the  premises  discharges  the  whole  condition.  Leede's  & 
Crompton's  Case,  Godb.  93.  But  see  7  Am.  Law  Rev.  616,  criticising  Dum- 
por's  Case,  4  Coke,  119b,  and  Bnimmell  v.  Macpherson,  14  Ves.  173. 

27  Barrie  v.  Smith,  47  Mich.  130,  10  N.  W.  168;  Sharon  Iron  Co.  v.  aty  of 
Erie,  41  Pa.  St.  341;  Hubbard  v.  Hubbard,  97  Mass.  188;  Pennant's  Case,  3 
Coke,  64a. 

2  8  An  acceptance  of  rent  accruing  after  the  breach  is  a  waiver,  Jackson  v. 
Allen,  3  Cow.  (N.  Y.)  220;  Goodright  v.  Davids,  2  Cowp.  803;  or  a  demand 
for  rent  so  accruing.  Camp  v.  Scott,  47  Conn.  366;  or  bringing  an  action  for 
it,  Dendy  v.  NichoU,  4  C.  B.  (N.  S.)  376. 

28  Lehigh  Coal  &  Nav.  Co.  v.  Early,  162  Pa.  St  338,  29  Atl.  736. 

80  Dickey  v.  M'Cullough,  2  Watts  &  S.  88. 

81  But  may  be  strong  evidence  of  it.  Ludlow  v.  Railway  Co.,  12  Barb. 
(N.  Y.)  440;    Hooper  v.  Cummings,  45  Me.  359. 

8  2  Doe  V.  Jones,  5  Exch.  498;  Doe  v.  Bliss,  4  Taunt.  735;  Ambler  v.  Wood- 
bridge,  9  Barn.  &  C.  376;  Flower  v.  Peck,  1  Barn.  &  Adol.  428;  Bleeker  v. 
Smith,  13  Wend.  (N.  Y.)  530;  Price  v.  Norwood,  4  Hurl.  &,  N.  512;  Crocker 
V.  Society,  106  Mass.  489;    Gillis  v.  Bailey,  21  N.  H.  149. 

8  8  Rogan  V.  Walker,  1  Wis.  527;  Sanborn  v.  Woodman,  5  Cush.  (Mass.)  36; 
Hancock  v.  Carlton,  6  Gray  (Mass.)  39;  Carpenter  v.  Westcott,  4  R.  I.  225; 
Henry  v.  Tupper,  29  Vt.  358. 


176  ESTATES    AS    TO    QUALITY CONDITIONS LIMITATION'S,  (Ch.   8 

wise  equity  will  not  give  relief.  Therefore,  for  breaches  of  condi- 
tions to  repair,  to  insure,  etc.,  equity  will  leave  the  parties  to  their 
remedies  at  law.'* 

An  estate  on  condition  may  expire  under  the  form  of  the  limita- 
tion, the  same  as  an  absolute  estate.  Thus,  where  a  life  estate  is 
given  on  condition,  the  death  of  the  life  tenant  puts  an  end  to  the 
estate,  though  the  condition  has  not  been  broken. 

SAME— WHO  CAN  ENFORCE  A  FORFEITURE. 

107.  An  entry  to  enforce  a  forfeiture  for  a  breach,  of  con- 
dition can  be  made  only  by  the  grantor,  or  his 
heirs,  except: 
EXCEPTION — The  assignee  of  a  reversion  after  a  lease- 
hold estate  can  enforce  covenants  -which  run  -with 
the  land. 

The  right  of  entry  for  breach  of  condition,  to  defeat  an  estate, 
cannot  be  reser^^ed  to  a  third  person,  but  only  to  the  grantor  and 
his  heirs.*'  Neither  can  it  be  assigned  or  transferred  with  a  grant 
of  the  reversion.*®  As  to  whether  a  devisee  of  the  grantor  may  en- 
force a  forfeiture,  the  cases  are  conflicting,*^     But  these  rules  do 

84  Dunklee  v.  Adams,  20  Vt  415;  Green  v.  Bridges,  4  Sim.  96;  Hill  v.  Bap- 
clay,  18  V'es.  5t>.  Equity,  on  the  other  hand,  will  not  enforce  a  forfeiture. 
Fetter,  Eq.  112. 

SB  Fonda  v.  Sase,  46  Barb.  (N.  Y.)  109;  Van  Rensselaer  v.  Ball,  19  N.  Y.  100; 
Marwick  v.  Andrews,  25  Me.  525.  Contra,  McKlssick  v.  Pickle,  16  Pa.  St.  140. 
And  see  Pinkum  v.  City  of  Eau  Claire,  81  Wis.  301,  51  N.  W.  550.  Nor  can 
a  stranger  raise  the  question  of  a  forfeiture.  Board  of  Education  of  Normal 
School  Dist.  V.  Trustees  of  First  Baptist  Church  of  Nonnal,  63  111.  204; 
Schulenberg  v.  Harriman,  21  Wall.  44;  Rector,  etc.,  of  King's  Chapel  v.  Pel- 
ham,  9  Mass.  501;  Smith  v.  Brannan,  13  Cal.  107;  Dewey  v.  Williams,  40  N. 
H.  222;    Norris  v.  Milner,  20  Ga.  563. 

3  8  Vermont  v.  Society  for  Propagation  of  Gospel,  2  Paine,  545,  Fed.  Cas.  No. 
16,920;  Rice  v.  Railroad  Co.,  12  Allen  (Mass.)  141;  Nicoll  v.  Railroad  Co.,  12 
N.  Y.  121;  Underbill  v.  Railroad  Co.,  20  Barb.  (N.  Y.)  455;  Warner  v.  Ben- 
nett, 31  Conn.  468. 

87  As  holding  that  he  cannot,  see  Den  v.  Railroad  Co.,  26  N,  J.  Law,  13. 
Contra,  Austin  v.  Cambridgepcrt  Parish,  21  Pick.  (Mass.)  215. 


§    108)  ESTATES    ON    LIMITATION.  177 

not  applj  to  leasehold  estates,  for  the  assignee  <rf  tiM;  rennendon  cao 
enforce  corenants  which  run  with  the  land." 


ESTATES  ON  LIMITATION. 

108.  An  estate  on  limitation  is  one  ly^hich  is  created  to 
continue  until  the  happening  of  a  conting^ency  upon 
which,  it  conies  to  an  end  -without  an  entry. 

The  phrase,  "words  of  limitation,"  has  already  been  used  to  des- 
ignate the  clause  in  a  conveyance  which  determines  the  quantity 
of  an  estate.  For  instance,  the  use  of  the  words  "heirs  of  his  body," 
in  creating  a  fee  tail.  The  meaning  of  the  word  "limitation"  in 
estates  on  limitation  is  practically  the  same;  that  is,  it  defines  the 
time  at  which  an  estate  comes  to  an  end,'®  An  estate  on  limita- 
tion is  therefore  one  which  is  determined,  rather  than  defeated,  by 
the  happening  of  a  contingency,  "as  when  land  is  granted  to  a  man 
so  long  as  he  is  parson  of  Dale,  or  while  he  continues  unmarried,  or 
until  out  of  the  rents  and  profits  he  shall  hare  made  £500,  and  the 
like."  *°  ITie  words  used  to  create  an  estate  on  limitation  all  re- 
fer to  time;  for  example,  **until,"  "while,"  "during,"  "as  long  as," 
etc.*^  But  neither  the  use  of  these  words,  nor  their  absence,  is  con- 
clusive.*^ 

An  estate  on  limitation  differs  from  one  om.  condition  chiefly  in 
that  no  entry  is  necessary  to  terminate  the  former;  for  it  com.es  to 

»•  See  ante,  p.  147. 

8»  These  are  by  some  writers  called  ""estates  on  conditional  limitation." 
That  term  is  also  used  to  designate  estates  which  vest  on  the  happening  of  a 
contingency.  As  we  shall  see  later,  such  estates  can  take  effect  only  as  spring- 
ing uses,  post,  p.  299,  or  executory  devises,  post,  p.  300.  Still  other  writers 
use  "conditional  limitation"  as  meaning  the  event  which  terminates  an  estate, 
rather  than  the  estate  which  is  terminated,  or  the  one  coming  into  existence 
on  the  happening  of  the  event.     See  Leake,  Prop.  Land,  214. 

*•  2  Bl.  Comm.  155. 

*i  Henderson  v.  Hunter,  59  Pa.  St.  335;  Bennett  t.  Robinson,  10  Watts 
(Pa.)  348;   Vanatta  v.  Brewer,  32  N.  J.  Eq.  268. 

**  Chapin  v.  Harris,  8  Allen  (Mass.)  594;  Owen  t.  Field,  102  Mass.  90; 
Wheeler  v.  Walker,  2  Conn.  196;  Gamp  v.  CUeaxy,  76  Va.  140;  Stearns  v.  Giod- 
«rey,  16  Me.  158. 

KKAIi  PROP.— 13 


178  ESTATliS    A3    TO    QUALIIY CONDlTla:5ti LIMITATIONS.  (Cli.  8 

an  end  absolutely  by  the  haj>pening  of  tbe  contingency,  because  it 
was  not  created  for  any  longer  time.  Conditions  cut  short  an  ex- 
isting estate.  Limitations  do  not,  but  mark  its  natural  end-  A 
third  person  may  take  advantage  of  tlie  happening  of  tke  event  on 
which  the  estate  is  limited  to  end.** 

SAME— BASE  OR  DETERMINABLE  TEES. 

109.  A  base  or  determinable  fee  is  a  fee  simple,  which 
may  be  terminated  by  the  happening  of  a  contin- 
gency. 

A  fee  which  is  liable  to  be  terminated  by  a  limitation  is  called  a 
base  or  determinable  fee.  This  is  the  kind  of  an  estate  which 
passed  when  a  tenant  in  tail  attempted  to  convey  a  fee  simple  by 
a  conveyance  which  barred  the  issue  under  the  entail,  but  not  the 
remainder-men.  The  grantee  took  a.  fee  determinable  on  the  extinc- 
tion of  the  issue  who  were  entitled  under  the  entail.**  A  base  fee 
dependent  on  a  collateral  condition  may  also  arise  by  express  pro- 
\ision  of  the  conveyance.*^  The  most  usual  cases  at  the  present 
time  are  w^here  land  is  granted  for  a  specified  use,  to  revert  to  the 
grantor  when  that  use  ceases.*'  Mr.  Gray,  however,  takes  the  po- 
sition that  a  valid  determinable  fee  cannot  be  created  since  the  stat- 

43  Scheetz  v.  Fitzwater,  5  Pa.  St  126;  Henderson  v.  Hunter,  59  Pa.  St  335; 
Ashley  v.  Warner,  11  Gray  (Mass.)  43;  Miller  v.  Levi,  44  N.  Y.  489;  Sleams 
V.  Godfrey,  16  Me.  158.  An  example  of  the  importance  of  this  distinction 
arises  in  connection  with  conditions  in  restraint  of  marriage.  Thus  an  estate 
to  A.  until  she  man-ies  is  valid  as  an  estate  on  limitation.  But  an  estate  to 
A.  provided  she  does  not  marry  is  void  because  it  is  an  estate  on  condition, 
and  the  condition  is  in  restraint  of  marriage.  Bennett  y.  Robinson,  10  Watts 
(Fa.)  348;  Alann  v.  Jackson,  84  Me.  400,  24  Atl.  886;  Jones  v.  Jones,  1  Q-  B. 
Div.  279. 

4  4  For  a  discussion  of  these  base  fees,  see  Challis,  Real  Prop.  264. 

4  6  Leonard  v.  Burr,  18  N.  Y.  90. 

48  As  for  school  purposes,  Board  of  Education  of  Village  of  Van  Wert  v. 
Inhabitants  of  Village  of  Van  Wert,  18  Ohio  St  221;  or  for  public  streets, 
Gebhardt  v.  Reeves,  75  111.  301;  Helm  v.  Webster,  85  111.  116.  And  see  Peo- 
ple V.  White,  11  Barb.  (N.  Y.)  26;  Morris  Canal  &  Banking  Ck).  v.  Brown,  27 
N.  J.  Law,  13;  Henderson  v.  Hunter,  59  Pa.  St  335;  Boiling  v.  Mayor,  etc, 
8  Leigh  (Va.)  224;    Thayer  v.  McGee,  20  Mich.  19G. 


§  109)  BASE  OE  DETERMINABLE  FEES.  179 

irte  of  quia  emptores,*'  The  point  has  not,  it  seems,  been  raised 
in  any  reported  case,  but  the  validity  of  such  limitatiMi  has  bepw 
assumed  without  question.^ 


4« 


4  7  Since  the  grantor  has  only  a  possibiUty  o*  reverter.  Gray,  Perp.  19. 
Contra,  Graves,   Real  Prop.  135. 

48  See  cases  cited  in  the  preceding  notes,  and  Slegrf  v.  Lauer,  148  Pa.  St 
236,  23  AtL  996;  Sheetz  v.  Fitz water,  5  Pa.  St  126;  Pennsylvania  R.  Co.  v 
Paite,  42  Pa.  St  31;    Rowland  v.  Warrwi,  10  Or.  129, 


180 


I3TATK3    A3    TO    QUALITY M0BTQAGK3. 


(Ch.  9 


CHAPTER  IX. 

ESTATES  AS  TO  QUALITY  (Continued)— MORTGAGEa. 

110.  Mortgage  Defined. 

111.  Parties  to  a  Mortgage. 

112.  Nature  of  a  Mortgage. 

113.  What  may  be  Mortgaged, 

114.  Form  of  a  ^lortgage. 

115.  Eights  and  Liabilities  of  Mortgagor  and  Mortgagee. 

116.  Nature  of  Mortgagor's  Elstate. 

117.  Possession  of  Mortgaged  Premises. 

118.  Insurance  on  Mortgaged  Premises. 

119.  Accounting  by  the  Mortgagee. 

120.  Debits. 

121.  Credits. 

122.  Annual  Rests. 
123-124.  Subrogation. 

125-126.    Assignment  of  the  Equity  of  Redemption. 
127-129.    Assignment  of  the  Mortgage. 

130.  Priority  of  Mortgages  and  Other  Conveyance*. 

131.  Registration. 

132.  Discharge  of  a  Mortgage. 
133-134.  Performance. 

135.  Merger. 

136.  Redemption. 

137.  Form  of  Discliarge. 
138-139.  Foreclosure. 

140.  Kinds  of  Foreclosure. 


MORTGAGE  DEFINED. 

110.  A  mortgage  is  a  conveyance  of  land  as  security,  and 
is  usually  in  the  form  of  an  estate  on  condition 
subsequent. 

The  discussion  of  mortgages  in  this  chapter  includes  only  mort- 
gages of  real  property.  A  more  specific  definition  of  a  mortgage 
than  a  conveyance  of  land  as  a  security  would  exclude  some  of  the 
many  forms  which  such  a  conveyance  may  assume.^     A  mortgage 

1 1  Jones,  Mortg.  (5th  Ed.)  §  16.  And  see  Draper  v.  Draper,  71  Hun,  349,  24 
N-  Y.  Supp.  1127;   Harriman  v.  Light  Co.,  103  Mass.  85,  39  N.  B.  1004;   Ander- 


§    110)  MOBTGAQE    DEFINED.  181 

is  an  estate  on  condition  subsequent;  that  is,  the  mortgagee  has 
an  estate  which  is  defeated  by  the  performance  of  the  condition  by 
the  mortgagor.  The  condition  is  usually  for  the  payment  of  money, 
but  it  may  be  for  the  support  of  the  mortgagee,*  or  for  his  indemnity 
against  liability.'  When  a  mortgage  is  given  to  secure  a  debt,  it 
is  usually  accompanied  by  a  note  or  other  evidence  of  indebtedness, 
though  this  is  not  essential  to  the  validity  of  the  mortgage;  for 
there  may  be  a  valid  mortgage  without  any  personal  liability  on 
the  part  of  the  mortgagor,  for  example,  when  the  creditor's  only 
right  to  payment  is  out  of  the  mortgaged  property,*  or  when  the 
mortgage  is  given  to  secure  a  debt  of  another  than  the  mortgagor.* 
It  will  not  be  presumed  that  the  mortgagor  is  personally  liable, 
from  the  mere  execution  of  the  mortgage.*  The  time  when  the 
debt  is  due  should  be  fixed  with  certainty,  so  that  it  may  be  knowD 
when  the  mortgagor  is  in  default.'     A  stipulation  providing  that, 

Bon  V.  Smith,  103  Mich.  446,  61  N.  W.  778;  Baum  v.  Gaffy,  45  111.  App.  138; 
Doescher  v.  Doescher  (Minn,)  63  N.  W.  736;  Leiweke  v.  Jordan,  59  Mo.  App.. 
619;  MerriU  v.  Hurley  (S.  D.)  62  N.  W.  958;  Strouse  v.  Ck)heii,  113  N.  a  349,, 
18  S.  E.  323. 

2  Soper  V.  Guernsey,  71  Pa.  St  219;  Flanders  v.  Lamphear,  9  N.  H.  201; 
Hoyt  V.  Bradley,  27  Me.  242;  Austin  v.  Austin,  9  Vt  420;  Hiatt  v,  Paiter, 
29  Kan.  765.  Unless  otherwise  provided,  the  obligation  to  support  is  a  per- 
sonal one,  and  cannot  be  assigned.  Eastman  v.  Batchelder,  36  N.  H.  141; 
Bethlehem  v.  Annis,  40  N.  H.  34;  Bryant  v.  Erskine,  55  Me.  153.  But,  con- 
tra, Joslyn  V.  Parlin,  54  Vt  670.  And  see  BodweU  Granite  Co.  v.  Lane,  83 
Me.  168,  21  Atl.  829. 

8  Lyle  V.  Ducomb,  5  Bin.  (Pa.)  585;  Gardner  v.  Webber,  17  Pick.  (Mass.) 
407;  Commercial  Bank  v.  Cunningham,  24  Pick.  (Mass.)  270;  Adams  v.  Nie- 
mann, 46  Mich.  135,  8  N.  W.  719;  Dxmcan  v.  Miller,  64  Iowa,  223,  20  N.  W. 
161. 

*  1  Jones,  Mortg.  (5th  E>L)  §  70;  Hodgdon  v.  Shannon,  44  N.  H.  572.  As  to 
description  of  the  indebtedness,  see  Usher  v.  Skate  Co.,  163  Mass.  1,  39  N. 
E.  416;  Merrill  v.  Elliott,  55  111,  App.  34;  Bo  wen  v.  RatclifE,  140  Ind.  393, 
39  N,  E.  860;    Harper  v.  Edwards,  115  N.  C.  246,  20  S.  K  392. 

6  Chittenden  v.  Gossage,  18  Iowa,  157;  New^  Orleans  Canal  &.  Banking  Co, 
V.  Hagan,  1  La.  Ann.  62. 

♦  1  Jones,  Mortg.  (5th  Ed.)  §  678;  Tnsk  y.  Ridge,  41  N.  Y.  201;  Smith  r. 
Rice,  12  Daly  (N.  Y.)  307;  Coleman  v.  Van  Rensselaer,  44  How.  Prac  (N.  Y.) 
368. 

«  1  Jones,  Mortg.  (5th  Ed.)  §  75.  When  the  mortgage  is  to  secure  a  note, 
the  mortgagor  is  entitled  to  days  of  grace.    Coffin  y.  Loring,  5  Allen  (Mass.) 


182  ESTATES    A3    TO    QUALITY MORTQAQES.  CCli-   9 

on  default  of  payment  of  any  installment  of  interest  or  principal, 
the  whole  debt  shall  become  due,  is  valid,^ 

PARTIES  TO  A  MORTGAGE. 

111.  The  parties  to  a  mortgage  must  be  com.peteiit  to  con- 

vey and  hold  real  property. 

As  to  the  parties  who  are  competent  to  execute  a  mortgage,*  it 
may  be  said  that  any  one  may  be  a  mortgagor  who  has  the  capacity 
to  transfer  real  property,"  and  any  one  may  be  a  mortgagee  who 
can  hold  real  property.^" 

NATURE  OP  A  MORTGAGE, 

112.  There  are  two  theories  as  to  the  nature  of  a  mort- 

gage recognized  in  the  different  states: 
(a)  The  common-law  theory  regards  a  mortgage  as  an  es- 
tate in   land,  and  the  mortgagee  as  the   owner  of 
the  land. 

153.  As  to  description  of  the  mortgage  debt,  see  Burt  t.  Gamble,  98  Mich. 
402,  57  N.  W.  261;  Dunham  v.  Provision  CJo.,  100  Mich.  75,  58  N.  W.  627; 
-Commercial  Banli  v.  Weinberg,  70  Hun,  597,  25  N.  Y.  Supp.  235;  Price  v. 
Wood,  76  Hun,  318,  27  N.  Y.  Supp.  691;  Snow  v.  Pressey,  85  Me.  408,  27  Atl. 
:272;  Gleason  v.  Kinney's  Adm'r,  65  Vt  560,  27  AtL  208;  D'Oyly  v.  Capp,  99 
<Gal.  153,  33  Pac.  736. 

1  Grape  Creek  Coal  Co.  v.  Farmers'  Loan  &  Trust  Co.,  12  a  C.  A.  350,  63 
Fed.  891;  Alabama  &  G.  Mannf'g  Co.  v.  Robinson,  6  C.  C.  A.  79,  50  Fed.  690; 
Owen  V.  Association,  55  111.  App.  347;  Dunn  v.  Sharpe,  9  Misc.  Rep.  636,  30 
N.  Y.  Supp.  353;  New  York  Security  &  Trust  Co.  v.  Saratoga  Gas  &  Electric 
Light  Co.,  88  Hun,  569,  34  N,  Y.  Supp.  890;  Osborne  v.  Ketcliam,  76  Hun, 
325,  27  N.  Y.  Supp.  694;  Atkinson  v.  Walton,  162  Pa.  St.  219,  29  AtL  898; 
Morling  v.  Brownson,  37  Neb.  608,  56  N.  W.  205;  Swearingen  v.  Ijahner  (Iowa) 
61  N.  W.  431;  Taylor  v.  Trust  Co.,  71  Miss.  G94,  15  South.  121.  And  see 
Weber  v.  Huerstel,  11  Misc.  Rep.  214,  32  N.  Y.  Supp.  1109.  Cf.,  however, 
French  v.  Row,  77  Hun,  380,  28  N.  Y.  Supp.  849.  No  notice  of  eleetioa  la 
necessary.    Brown  v.  McKay,  151  111.  315,  37  N.  E.  1037. 

«  As  to  personal  capacity,  see  post,  p.  38L 

»  1  Jones,  Mortg.  (5th  Ed.)  §  102. 

!•  1  Jones,  Mortg.  (5th  Ed.)  §  131;  Parker  v.  Linctrfn,  12  Masa  16.  Bxst  see 
Thompson  v.  Holladay,  15  Or.  34,  14  Pac  725. 


§    112)  NATURE    OF    A    MOBTQAQE.  183 

(b)  The  equitable  or  lien  theory  reg^ards  a  mortgage  as 
a  mere  security,  and  the  mortgagee  as  having  only 
a  lien. 

The  Common-La/w  Theory, 

In  the  United  States  there  are  two  theories  as  to  the  nature  of  a 
mortgage:  One  is  that  the  mortgagee  htis  an  estate;  the  other,  that 
he  has  only  a  lien.  This  difference  is  the  result  of  the  history  of 
mortgage  securities."  At  common  law  the  estate  of  the  mort- 
gagee became  absolute  on  default  of  payment  by  the  mortgagor.^^ 
This  often  resulted  in  injustice  to  both  parties,— to  the  mortgagee, 
because  he  had  no  remedy  to  recover  the  balance  of  his  debt,  if  the 
mortgaged  property  was  inadequate;  and  to  the  mortgagor,  be- 
cause the  value  of  the  estate  mortgaged  was  often  greatly  in  ex- 
cess of  the  amount  of  the  debt  secured.  This  inequality  in  the  law 
was  remedied  by  the  courts  of  equity.  They  recognized  a  right  in 
the  mortgagor  to  redeem  by  paying  the  amount  due,  with  interest; 
that  is,  the  real  intention  of  the  parlies  to  give  a  security  was  ef- 
fectuated." This  right  was  termed  an  "equity  of  redemption." 
The  mortgagee  could  cut  o-ff  the  mortgagor's  right  of  redemption 
by  appearing  in  court,  and  having  a  day  set  when  the  mortgagor 
must  redeem,  or  lose  the  right  to  do  so.^* 

The  Equitable  or  Lien  Theory. 

In  courts  of  equity  the  mortgagee's  interest  becomes  absolute  only 
after  the  foreclosure  of  the  mortgagor's  equity  of  redemption.  The 
mortgagor's  equity  of  redemption  is  recognized  in  all  of  the  states: 
In  some  states  the  mortgagee  is,  as  at  common  law,  regarded  as  the 
owner,^'  while  in  others,  either  by  statute  or  decisions  of  the  courts, 

11  See  Digby,  Hist.  Real  Prop.  (4th  Ed.)  282,  and  1  Jones,  Mortg.  (5th  Ed.) 
§  1,  for  a  description  of  the  obsolete  vivium  vadium,  and  the  Welsh  mort- 
gage. 

n  1  Jones,  Mortg.  ^th  Ed.)  §  4. 

13  Id.  §  10. 

1*  Id.  §  1538. 

IS  Toomer  v.  Randolph,  60  Ala.  356;  Welch  v.  PhllHps,  &4  Ala.  309;  Knox 
V.  Easton,  38  Ala.  345;  Kannady  v.  McCarron,  18  Ark.  166;  Chamberlain  v. 
Thompson,  10  Conn.  243;  Carroll  v.  Ballance,  26  111.  9;  Nelson  v.  Pinegar,  30 
m.  473  (but  see  Barrett  v.  Hinckley,  124  IlL  32,  14  N.  E.  8G3);  M'Kim  ▼. 
Mason,  3  Md.  Ch,  186;  Ewer  v.  Hobbs,  5  Mete.  (Mass.)  1;  Brown  v.  Cram, 


184  BSTATKS    AS    TO    QUALITY MOBTQAQKS.  (Ch.    9 

it  is  held  that  the  mortgagee  has  no  estate  in  the  mortgaged  prem- 
ises, bat  only  a  lien  on  them  for  the  security  of  his  debt^*  In  these 
states  the  mortgagor  is  considered  the  owner.  Neither  theory  is 
entirely  consistent,  because  both  mortgagor  and  mortgagee  are  con- 
stantly recognized  as  having  rights  of  ownership  which  they  are 
permitted  to  defend  in  the  courts." 

WHAT  MAY  BE  MORTGAGED. 

113.  Any  interest  in   realty  v^hich   is   subject  to  sale  and 
assignment  may  be  mortgaged. 

As  stated  in  the  black-letter  text,  any  interest  in  realty  which  is 
subject  to  sale  or  assignment  may  be  mortgaged.^*  This  interest 
may  be  either  in  possession  or  in  expectancy.^*     So  there  may  be 

1  N.  H.  169;  Kircher  v.  Schalk,  39  N.  J.  Law,  335;  Hemphill  v.  Ross,  66  N.  C 
477;  State  v.  Ragland,  75  N.  C.  12;  Allen  v.  Everly,  24  Ohio  St  97;  Rands  v. 
Kendall,  15  Ohio,  671;  Tryon  v.  Munson,  77  Pa.  St.  250;  Carpenter  v.  Car- 
penter, 6  R.  I.  542;  Henshaw  v.  Wells,  9  Humph.  (Tenn.)  568;  Hagar  v.  Brain- 
erd,  44  Vt  294;  Lull  v.  Matthews,  19  Vt  322;  Faulkner's  Adm'x  v.  Brocken- 
brough,  4  Rand.  (Va.)  245.  Modifications  of  the  common-law  theory,  hold- 
ing that  the  mortgagor  is  owner  until  breach,  exist  in  some  states.  Doe  v. 
Tunnell,  1  Houst.  (Uel.)  320;  Hill  v.  Robertson,  24  Miss.  368;  Johnson  v. 
Houston,  47  Mo.  227;  Woods  v.  Hilderbrand,  46  Mo.  284. 

16  McMillan  v.  Richards,  9  Cal.  365;.  Button  v.  Warschauer,  21  Cal.  609; 
McMahon  v.  Russell,  17  Fla.  698;  Jordan  v.  Sayre,  29  Fla.  100,  10  South. 
823;  Yason  v.  Ball,  56  Ga.  268;  Fletcher  v.  Holmes,  32  Ind.  497;  Francis  v. 
Porter,  7  Ind.  213;  White  v.  Rittenmyer,  30  Iowa,  268;  Chick  v.  Willetts,  2 
Kan.  384;  Woolley  v.  Holt,  14  Bush  (Ky.)  788;  Duclaud  v.  Rousseau,  2  La 
Ann.  168;  Caruthers  v.  Humphrey,  12  Mich.  270;  Adams  v.  Corriston,  7  Minn. 
456  (Gil.  365);  Gallatin  Co.  v.  Beattie,  3  Mont  173;  Kyger  v.  Ryley,  2  Neb. 
20;  Hurley  v.  Estes,  6  Neb.  386;  Hyman  v.  Kelly,  1  Nev.  179;  Jackson  v.  Wil- 
lard,  4  Johns.  (N.  Y.)  41;  Thompson  v.  Marshall,  21  Or.  171,  27  Pac.  957; 
Navassa  Guano  Co.  v.  Richardson,  26  S.  C.  401,  2  S.  K  307;  Wright  v.  Hen- 
derson, 12  Tex.  43;  Wood  v.  Trask,  7  Wis,  566. 

IT  1  Jones,  Mortg.  (5th  Ed.)  §  14. 

18  Neligh  V.  Michenor,  11  N.  J.  Eq.  539;  Miller  v.  Tipton,  6  Blackf.  (Ind.) 
238;  Dorsey  v.  Hall,  7  Neb.  460.  As  to  mortgages  of  homesteads,  see  ante, 
p.  124.  That  a  pre-emption  right,  under  the  United  States  homestead  laws, 
cannot  be  mortgaged,  see  Penn  v.  Ott  12  La.  Ann.  233;  Gilbert  v.  Penn,  Id. 
235.    Contra,  Whitney  v.  Buckman,  13  Cal.  536. 

19  Wilson  V.  WUson,  32  Baib.  (N.  Y.)  328;  In  re  John  and  Cherry  Sts.,  19 
Wend.  (N.  Y.)  659. 


§    113)  WHAT    MAY    BE    MORTGAGED.  185 

a  mortgage  of  a  bond  for  title,'"  or  of  a  right  to  possession  under  a 
contract  for  purchase,^ ^  or  of  an  option  to  purchase.'"  A  widow 
may  mortgage  her  unassigned  right  of  dower,'*  and  a  devisee  may 
mortgage  land  devised  to  him  in  which  he  has  a  vested  interest.^* 
There  may  be  a  mortgage  of  a  mortgage,'"  of  an  equitable  right," 
or  of  rents, '^  A  mortgage  of  liind  covers  the  buildings  and  fixtures 
thereon,  and  a  mortgage  of  a  building  includes  the  land  on  which 
it  stands.'*  A  mortgage  may  be  made  to  cover  subsequent  im- 
provements and  future  accessions,'*  such  as  crops  to  be  planted.^" 
So  a  mortgage  may  be  given  to  cover  after-acquired  property,*^  sub- 
ject, of  course,  to  liens  which  may  exist  on  the  property  at  the  time 
it  is  acquired.*' 

20  Baker  v.  Colony,  45  111.  264;  Crane  v.  Turner,  67  N.  Y.  437. 

«i  Bull  V.  Shepard,  7  Wis.  449;  Sinclair  v,  Armitage,  12  N.  J.  Eq.  174, 

2  2  Bank  of  Louisville  v,  Baumeister,  87  Ky.  6,  7  S.  W,  170. 

28  Mutual  Life  Ins.  Co.  of  New  York  v.  Shipman,  119  N.  Y.  324,  24  N,  E. 
177. 

2  4  Drake  v.  Paige,  127  N,  Y.  562,  28  N,  E.  407.  So  an  heir  may  mortgage 
his  undivided  interest.    Carter  v.  McDaniel,  94  Ky.  564,  23  S.  W.  507. 

2BMurdoek  v.  Chapman,  9  Gray  (Mass.)  156;  Cutts  v.  Manufacturing  Co., 
18  Me.  190. 

26  Lincoln  Bldg.  &  Sav.  Ass'n  v.  Hass,  10  Neb.  581,  7  N.  W.  327;  Laughlin 
V,  Braley,  25  Kan.  147;  Wilson  v.  Wright,  91  Ga.  774,  18  S.  E.  546. 

»T  Van  Rensselaer  v.  Dennison,  35  N.  Y.  393, 

2  8  Wilson  V.  Hunter,  14  Wis.  683. 

28  Mitchell  V.  Winsiow,  2  Story,  630,  Fed.  Cas.  No.  9,673;  Smlthurst  v,  Ed- 
munds, 14  N.  J.  Eq.  408. 

80  Van  Hoozer  v.  Cory,  34  Barb.  (N.  Y.)  9;  Arques  v,  Wasson,  51  Gal,  620; 
Jones  V,  Webster,  48  Ala.  109. 

81  Thompson  v.  Railroad  Co.,  132  U.  S.  68,  10  Sup.  Ct.  29;  Central  Trust 
Co.  v.  Kneeland,  138  U.  S.  414.  11  Sup.  Ct.  357;  Parker  v.  Railroad  Co.,  33 
Fed.  693;  Omaha  &  St  L.  Ry.  Co.  v.  Wabash,  St  L.  &  P,  Ry.  Co.,  108  Mo. 
298,  18  S.  W.  1101;  Frank  v.  Hicks  (Wyo.)  35  Pac.  1025.  But  see  Harriman 
T.  Light  Co.,  163  Mass.  85,  39  N.  E.  1004;  Cook  v.  Prindle  (Iowa)  63  N.  W. 
187;  Paddock  v.  Potter,  67  Vt  360,  31  Atl.  784;  Grape  Creek  Coal  Co.  v. 
Farmers'  Loan  &  Trust  Co.,  12  C.  C,  A.  350,  63  Fed.  891. 

3  2  Wood  V.  Manufacturing  Co.,  100  Ala.  326,  13  South.  948.  And  see  Hobba 
V.  Trust  Co.,  15  O,  a  A.  604,  68  Fed.  618;  Patterson  v.  Trust  Co.  a^y.)  30  S. 
^V.  872. 


186  ESTATES    AS    TO    QUALITY MORTQAQKa.  (Ch.   9 


FORM  OF  A  MORTGAGE. 

114.  The  ordinary  form  of  a  mortgage  is  that  of  an  abso- 
lute conveyance  ■mtli  a  defeasance  clause.  But  a 
mortgage  may  be  created: 

(a)  With  a  separate  defeasance  (p.  186). 

(b)  With  a  parol  defeasance  (p.  187). 

(c)  By  a  sale  -with  an  agreement  to  reconvey  (p.  189). 

(d)  By  a  deed  of  trust  (p.  190u 

(e)  By  an  instrument  operating   as   an   equitable   mort- 

gage, -which  may  be: 

(1)  An  agreement  to  give  a  mortgage  (p.  190). 

(2)  An  informal  mortgage  (p.  190). 

(3)  An  assignment  of  a  contract  to  purchase  (p.  190). 

(4)  By  deposit  of  title  deeds,  in  a  few  states  (p.  192). 

(5)  A  vendor's  lien  (p.  192). 

(6)  A  vendee's  lien  (p.  191). 

Under  either  theory  as  to  the  nature  of  a  mortgage,  the  usual 
form  is  the  same;  that  is,  an  absolute  conveyance  with  a  defeas- 
ance clause.*^  But  no  i)articular  form  is  necessary.  "^Tienever 
an  instrument  appears  to  have  been  intended  for  a  mortgage,  the 
courts  will  so  construe  it.^*  The  defeasance  clause  may  be  in  a 
separate  instrument,^  "^  and  this  may  be  executed  at  a  time  subse- 
quent to  the  execution  of  the  conveyance.^®  Subsequent  purchasers 
and  grantees  will  be  protected  against  such  separate  defeasance, 

8  8  As  to  execution  of  mortgages,  see  post,  p.  414.  For  effect  of  alterations, 
see  Claris;,  Cont  686. 

8*  Hughes  V.  Edwards,  9  Wheat.  489;  Morris  v.  Nixon,  1  How.  118;  Russell 
V.  Southard,  12  How,  139;  Gilson  v.  Gilson,  2  Allen  (Mass.)  115;  James  v. 
Morey,  2  Cow.  (N.  Y.)  246;  Clark  v.  Henry,  Id.  324;  Stoever  v.  Stoever,  9  Serg. 
&  R.  (Pa.)  434;  Rogan  v.  Walker,  1  Wis.  527. 

«B  Dubuque  Nat.  Bank  v.  Weed,  57  Fed.  513.  Except  In  a  few  states  where 
it  is  prohibited  by  statute,  see  1  Stim.  Am.  St  Law,  §  1856.  And  In  some 
states  the  defeasance  must  be  recorded,  or  the  mortgagee  takes  nothing.  See 
post,  p.  21S. 

8  6  Jeff  cry  v.  Hursh,  58  Mich.  246,  25  N.  W.  176,  and  27  N.  W.  7;  Waters  v. 
Crabti-ee,  105  N.  C.  394,  11  S.  E.  240. 


§    114)  FORM    OF    A    MORTaAGE.  187 

unless  it  is  recorded,  or  they  have  notice  thereof.'^  A  separate 
defeasance  may  be  canceled  by  a  subsequent  agreement  to  re- 
lease, in  which  case  the  estate  of  the  grantee  becomes  absolute." 

Parol  Defeasance — Deed  Absolute  on  Its  Face. 

In  a  court  of  law  a  grantor  will  not  be  permitted  to  show  by  parol 
evidence  that  his  deed,  absolute  in  form,  was  in  fact  a  mortgage,^® 
But  courts  of  equity  permit  such  parol  defeasance  to  be  establish- 
ed.*" But  a  mortgage  cannot  be  set  up  in  this  way  against  subse- 
quent purchasers  from  the  grantee,  without  notice,*^  though  the 
mortgagee  would  be  liable  to  account  to  the  mortgagor  either  for 
the  proceeds  of  the  sale,  or  the  value  of  the  land.*^  Some  courts 
say  that  the  grantor  will  be  permitted  to  establish  a  defeasance  by 
parol  only  in  cases  of  fraud,  accident,  or  mistake.*^  But  most  courts 
grant  this  relief  whenever  necessary  to  effectuate  the  intention  of 
the  parties.**     These  cases  are  held  not  to  be  within  the  statute  of 

87  Brown  v.  Dean,  8  Wend.  (N.  Y.)  208;  Walton  v.  Cronly's  Adm'r,  14  Wend. 
(N.  Y.)  63;  Dey  v.  Dunham,  2  Johns.  Ch.  (N.  Y.)  182;  Friedley  v.  Hamilton,  17 
Serg.  &  R.  (Pa.)  70. 

88  1  Jones,  Mortg.  (5th  Ed.)  §  252. 

■8»  Webb  V.  Rice,  6  Hill  (N.  Y.)  219;  Gates  v.  Sutherland,  76  Mich.  231,  42 
N.  W.  1112.  Contra  in  some  states.  TlUson  v.  Moulton,  23  111.  648;  Wilcox 
V.  Bates,  26  Wis.  465;  Plato  v.  Roe,  14  Wis.  453.  And  see  Jones,  Mortg.  (5th 
Ed.)  §  282,  note  1. 

*o  McArthur  v.  Robinson  (Mich.)  62  N.  W.  713;  Morrow  v.  Jones,  41  Neb. 
867,  60  N.  W.  369;  Dun  ton  v.  McCook  (Iowa)  61  N.  W.  977;  Montgomery  v. 
Beechor  (N.  J.  Ch.)  31  Atl.  451;  Ahern  v.  McCarthy,  107  Cal.  382,  40  Pac.  482. 
But  see  FuUer  v.  Trust  Co.,  157  Pa.  St.  646,  28  Atl.  148.  Contra,  by  statute,  in 
some  states.  1  Stim.  Am.  St  Law,  §  1856;  1  Jones,  Mortg.  (5th  Ed.)  §§  282, 
312. 

*i  Jaclison  V.  Lawrence,  117  U.  S.  679,  6  Sup.  Ct  915;  Meehan  v.  Forrester, 
52  N.  Y.  277;  Pancake  v.  Cauffman,  114  Pa.  St  113,  7  AtL  67;  Sweetzer  v. 
Atterbury,  100  Pa.  St.  22.  But  see  Gibson  v.  Hutchins,  43  S.  a  287,  21  S,  E. 
250. 

*2  Jackson  v.  Stevens,  108  Mass.  94;  Heister  v.  Madeira,  3  Watts  &  S.  (Pa.) 
384;    Boothe  v.  Fiest,  80  Tex.  141,  15  S.  W.  799. 

*8  Sprague  v.  Bond,  115  N.  C.  530,  20  S.  E.  709;  Green  v.  Sherrod.  105  N.  C. 
197,  10  S.  E.  986;  Washburn  v.  Merrills,  1  Day  (Conn.)  139;  Brainerd  v.  Brain- 
erd,  15  Conn.  575.     And  see  Furguson  v.  Bond,  39  W.  Va.  561,  20  S.  E.  591. 

44  1  Jones,  Mortg.  (5th  Ed.)  §  321;  Sanborn  v.  Sanborn  (Mich.)  62  N.  W.  371; 
Emerson  v.  Atwater,  7  Mich.  12;  Swetland  v.  Swetland,  3  Mich.  482;  Klock 
7.  Waiter,  70  111.  416;  Wynkoop  v.  Cowing,  21  IlL  570;  Workman  v.  Greening, 


188  ESTATES    A3    TO    QUALITY MORTGAGES.  (,Ch.   ^ 

frauds,  because  that  statute  is  never  permitted  to  be  made  an  in- 
strument of  fraud."  Th.e  test  of  the  real  character  of  the  trans- 
action is,  in  all  cases,  the  intention  of  the  parties."  This  is  shown 
by  their  acts.  For  instance,  continued  possession  by  the  mort- 
gagor,*^ and  his  payment  of  interest  and  taxes,"  the  continuance 
of  the  relation  of  debtor  and  creditor,  and  the  retention  of  the  evi- 
dence of  debt  by  the  grantee,"  as  well  as  inadequacy  of  price,  all 
go  to  show  that  the  conveyance  was  in  fact  a  mortgage."  On  the 
other  hand,  if  the  debt  is  canceled,"  and  the  mortgagee  takes  pos- 
session and  makes  improvements,  the  presumption  is  almost  con- 
clusive that  no  mortgage  was  intended.*  To  permit  the  establish- 
ment of  a  parol  defeasance,  it  is  not  necessary  that  the  conveyance 
be  made  by  the  debtor, ''^^  since  the  grantee  may  have  purchased  at 
a  foreclosure  or  execution  sale  on  behalf  of  the  one  clauning  to  be 
mortgagor,  and  the  purchaser  have  taken  title  in  his  own  name  for 
security,"  It  may  also  be  shown  by  parol  evidence  that  an  as- 
signment of  a  mortgage,  or  of  a  contract  to  purchase,  absolute  in 

115  111.  477,  4  N.  E.  385;  Campbell  v.  Dearborn,  109  Mass.  130;  Horn  v. 
Keteltas,  46  N.  Y.  605;  Fiedler  v.  Darrln,  50  N.  Y.  437;  Rhines  v.  Baird,  41 
Pa.  St.  256;  Plumer  v.  Guthrie,  76  Pa,  St  441;  Rogan  v.  Walker,  1  Wis.  527; 
Wilcox  V.  Bates,  26  Wis.  465. 

*5  Reigard  v.  McNeil,  38  111.  400;  Landers  v.  Beck,  92  Ind.  49;  Moore  v. 
Wade,  8  Kan.  380;  Klein  v.  McNamara,  54  Miss.  90;  Sewell  v.  Price's  Adm'r, 
32  Ala.  97. 

*8  Russell  V.  Southard,  12  How.  139;  Darst  v.  Murphy,  119  111.  343,  9  N.  E. 
887;  Workman  v.  Greening,  115  111.  477,  4  N.  E.  385;  Ingalls  v.  Atwood,  53 
Iowa,  283,  5  N.  W.  160;  Lane  v.  Shears,  1  Wend.  (N.  Y.)  433;  Cole  v.  Bolard, 
22  Pa.  St  431. 

4T  Campbell  v.  Dearborn,  109  Mass.  130. 

♦8  Boocock  v.  Phipard,  52  Hun,  614,  5  N.  Y.  Supp.  22a 

*9  Ennor  v.  Thompson,  46  111.  214. 

BO  Helm  V.  Boyd,  124  111.  370,  16  N.  E.  85;  Wilson  v.  Patrick,  34  Iowa,  862. 
But  see  Story  v.  Springer,  155  111.  25,  39  N.  E.  570. 

Bi  Rue  V.  Dole,  107  IlL  275;    Ford  v.  Irwin,  18  Cal.  117. 

•Woodworth  v.  Carman,  43  Iowa,  504. 

62  Jourdain  v.  Fox.  90  Wis.  99,  62  N.  W.  936;  Stoddard  v.  Whiting,  46  N.  Y. 
627;   Carr  v.  Carr,  52  N.  Y.  251. 

0  8  Ryan  v.  Dox,  34  N.  Y.  307;  Union  Mut  Life  Ins.  Co.  v.  Slee,  123  111.  57, 
12  N.  E.  543;  Phelan  v.  Fitzpatrick,  84  Wis.  240,  54  N.  W.  614;  Hoile  v. 
Bailey,  58  Wis.  434,  17  N.  W.  322. 


f    114)  FORM    OF    A    MORTGAGE.  189 

form,  was  intended  as  mere  security."*  But  in  all  cases  strict  proof 
is  required  of  the  one  who  seeks  to  show  that  the  transaction  was  a 
mortgage.""  A  judgment  creditor,  or  other  persons  succeeding  to 
the  rights  of  the  mort;gagor,  may  show  the  true  character  of  the 
transaction."^  A  parol  defeasance  may  be  extinguished  by  a  sub- 
sequent agreement."^ 

Sale  with  Agreement  to  Reconvey, 

A  sale  with  an  agreement  to  reconvey  may  be  a  moriigage,"  or  a 
conditional  sale."®  In  a  court  of  law  it  may  be  shown  to  be  a 
mortgage,  if  the  sale  and  the  agreement  are  executed  at  the  same 
tLme.®°  Courts  of  equity  are  more  lenient,  and  sometimes  permit  it 
to  be  shown  that  the  transaction  was  a  mortgage,  although  the 
agreement  to  reconvey  was  executed  subsequently.^^  Parol  evi- 
dence is  admissible  to  connect  the  two  instruments.®*  The  circum- 
stances which  tend  to  show  that  an  absolute  conveyance  was  in  fact 
a  mortgage  would  also  show  that  a  sale  with  an  agreement  to  re- 
convey was  a  mortgage.**     But  such  a  transaction  may  be  a  condi- 

64  McClintock  v.  McClintock,  8  Brewst  (Pa.)  76;  Brlggs  v.  Rice,  130  Mass. 
50;    Smith  v.  Cremer,  71  111.  185. 

6B  Magnusson  V.  Jolinson,  73  111.  156;  Case  v.  Peters,  20  Mich.  298;  Tilden  v. 
Streeter,  45  Mich.  533,  8  N,  W.  502;  Johnson  v.  Van  Velsor,  43  Mich.  208,  5  N. 
W.  265;  Pancake  v.  Cauffman,  114  Pa.  St  113,  7  Atl.  67;  Lance's  Appeal,  112 
Pa.  St.  456,  4  Atl.  375;    Hartley's  Appeal,  103  Pa.  St  23. 

68  Van  Buren  v.  Olmstead,  5  Paige  (N.  Y.)  9;  Judge  v.  Reese,  24  N.  J.  Eq. 
887;    Clark  v.  Condit,  18  N.  J.  Eq.  358. 

67  And  this  may  be  by  parol.     Jordan  v.  Katz,  89  Va.  628,  16  S.  E.  8C6. 

6  8  Keithley  v.  Wood,  151  111.  566,  38  N.  E.  149;  Helbreg  v.  Schumann,  150 
m.  12,  37  N.  E.  99;  Shields  v.  Russell,  142  N.  Y.  290,  36  N.  E.  1061;  Rempt  v. 
Geyer  (N.  J.  Ch.)  32  Atl.  266;  Eckford  v.  Berry,  87  Tex.  415,  28  S.  W.  937; 
Williams  v.  Chambers-Roy  Co.  (Tex.  Civ.  App.)  26  S.  W.  270;  Alderson  v. 
Caskey  (Ky.)  24  S.  W.  629;    Nelson  v.  Atkinson,  37  Neb.  577,  56  N.  W.  313. 

6  8  Blazy  v.  McLean,  77  Hun,  607.  28  N.  Y.  Supp.  286;  Stowe  v.  Banks,  123 
Mo.  672,  27  S.  W.  847;  Tygret  v.  Potter  (Ky.)  29  S.  W.  976. 

80  Murphy  v.  Calley,  1  Allen  (Mass.)  107;  Bennock  v.  Whipple,  12  Me,  346; 
McLaughlin  v.  Shepherd,  32  Me.  143.  Delivery  of  the  agreement  to  reconvey 
in  escrow  is  not  sufficient    Bodweli  v.  Webster,  13  Pick,  (Mass.)  41L 

«i  Walker  v.  Mining  Co.,  2  Colo.  89. 

•a  Preschbaker  v.  Feaman,  82  IlL  475;  Umbenhower  v.  Miller,  101  Pa.  St. 
73;   Gay  v,  Hamilton,  83  Cal.  686. 

•«  1  Jones,  Mortg,  (5th  Ed.)  §§  274,  275u 


190  ESTATES    AS    TO    CiUALITY MORTGAGES.  (Ch.    9 

tional  sale,  if  the  intention  of  the  parties  so  appears,  either  by  their 
express  declaration,  or  by  the  circumstances  of  the  case.**  Such 
intention  is  shown  by  the  fact  that  the  debt  previously  due  from 
the  grantor  is  extinguished,*"^  and  that  there  is  no  agreement  to 
pay,*'  and  by  an  agreement  that  the  grantee  may  buy  the  estate  ab- 
solutely after  a  certain  time.'^  Nor  does  the  mere  recording  of  the 
instrument  as  a  mortgage  prevent  a  showing  that  it  was  in  fact  a 
conditional  sale.*' 

Deed  of  Trust. 

A  deed  of  trust  in  the  nature  of  a  mortgage — that  is,  a  convey- 
ance of  realty  to  a  trustee  to  secure  the  payment  of  a  debt — is  in 
many  states  treated  as  a  mortgage.*"  The  usual  form  of  a  deed  of 
trust  is  a  conveyance  to  the  trustee  to  hold  in  trust  to  reconvey  to 
the  grantor  if  the  debt  secured  is  paid;  otherwise,  to  sell  the  land 
and  apply  the  proceeds  to  the  payment  of  the  debt,  and  pay  the 
balance  to  the  grantor.^ "  Statutes  which  relate  to  mortgages  are 
held  to  include  deeds  of  trust,  without  express  mention.  Therefore 
they  are  subject  to  the  same  requirements  as  to  execution  and  re- 
cording.''^ 

Equitable  Mortgage. 

An  equitable  mortgage  does  not  refer  to  the  mortgage  of  an  equi- 
table interest,  but  to  instruments  having  the  effect  of  mortgages, 
which  are  recognized  only  in  equity.     An  absolute  deed  with  a  parol 

6  4  Horbach  v.  Hill,  112  U.  S.  144,  5  Sup.  Ct  81;  Hughes  v.  Sheafif,  19  Iowa, 
335;  Davis  v.  Stonestreet,  4  Ind.  101;  Smith  v.  Crosby,  47  Wis.  160,  2  N.  W, 
104;    Henley  v.  Hotaliug,  41  Cal.  22. 

6  6  Rue  V.  Dole,  107  111.  275;  Kraemer  v.  Adelsberger,  122  N.  Y.  467,  25  N.  E. 
859;    Bridges  v.  Linder,  60  Iowa,  190,  14  N.  W.  217. 

6  0  BoglJ  V.  Gassert,  149  U.  S.  17,  13  Sup.  Ct.  738;  Flagg  v.  Munn,  14  Pick. 
(Mass.)  407;    Hanford  v.  Blessing,  80  111.  188. 

6  7  Baker  v.  Thrasher,  4  Denio   (N.  Y.)  493;   Macauley  v.  Porter,  71  N.  Y.  173. 

6  8  Morrisou  v.  Brand,  5  Daly  (N.  Y.)  40. 

6  9  shillaber  v.  Robinson,  97  U.  S.  68;  Southern  Pac.  R,  Co.  v.  Doyle,  11  Fed. 
253;  McLane  v.  Paschal,  47  Tex.  366.  The  trustee  is  the  agent  of  both  par- 
ties, and  so  must  be  impartial.  Peninsular  Iron  Co.  v.  Eells,  15  C.  C.  A.  189, 
68  Fed.  24;  Sherwood  v.  Saxton,  63  Mo.  78.  Cf.  Moran  v.  Hagerman,  12  C.  C. 
A-  239,  64  Fed.  499. 

TO  2  Jones,  Mortg.  (5th  Ed.)  §  1770. 

II  Woodruff  V.  Robb,  19  Ohio,  212;   Crosby  v.  Huston,  1  Tex.  203. 


§    114)  FORM    OF    A    MORTGAGE.  191 

defeasance,  which  has  been  considered,  is  one  of  these.^'  Equitable 
mortgages  must  satisfy  the  same  requisites  as  to  execution  and  re- 
cording as  other  mortgages.'"  An  agreement  to  mortgage  is,  in 
equity,  treated  as  a  mortgage,  on  the  principle  that  equity  treats 
that  as  done  which  ought  to  be  done  J*  But,  to  have  this  effect, 
some  specific  property  to  be  mortgaged  must  be  designated/''  The 
agreement,  however,  need  not  be  in  writing,  if  there  is  sufficient 
part  performance  to  satisfy  the  statute  of  frauds.^*  It  is  not  nec- 
essary that  the  estate  conveyed  by  a  mortgage  be  a  legal  one.  A 
mere  equitable  interest  may  pass  and  be  sufficient  ^ 

An  informal  mortgage — that  is,  one  invalid  at  law  by  reason  of 
some  defect  in  execution — is  sometimes  made  effective  as  a  mortgage 
in  equity.'^"  An  assignment  of  rents  as  a  security  is  regarded  as  an 
equitable  mortgage,  since  a  mortgage  of  such  rents  would  in  fact 
be  an  assignment  of  them.^®  The  same  is  true  of  a  power  to  collect 
rents.®"  Another  form  of  equitable  mortgage  is  an  assignment  of 
a  contract  to  purchase,*^  or  of  a  bond  to  convey.*^  Such  assign- 
ment may  be  valid  as  a  mortgage,  even  though  the  conveyance  is 
dependent  on  the  performance  of  a  condition,*^  and  the  vendor  and 

T2  1  Jones,  Mortg.  (5th  Ed.)  §  162. 

T8  New  Vienna  Bank  v.  Johnson,  47  Ohio  St.  306,  24  N.  E.  503. 

7*  See  Fetter,  Eq.  25;  Ex  parte  Howe,  1  Paige  (N.  Y.)  125;  Osgood  v.  Os- 
good, 78  Mich.  290,  44  N.  W.  325;   Ott's  Ex'x  v.  King,  8  Grat.  (Va.)  224. 

TBLangley  v.  Vaughn,  10  Heisk.  (Tenn.)  553;  Adams  v.  Johnson,  41  Miss. 
258;  Price  v.  Cutts,  29  Ga.  142. 

T6  Baker  v.  Baker,  2  S.  D.  261,  49  N.  W.  1064;  Burdick  v.  Jackson,  7  Hun 
(N.  Y.)  488. 

TT  Gale's  Ex'rs  v.  Morris,  29  N.  J.  Eq.  222;  New  Vienna  Bank  v.  Johnson, 
47  Ohio  St.  306,  24  N.  E.  503. 

T8  Central  Trust  Co.  of  New  York  v.  Bridges,  6  C.  C.  A.  539,  57  Fed.  753; 
Gest  V.  Packwood,  39  Fed.  525;  Abbott  v.  Godfroy's  Heirs,  1  Mich.  179;  Lake  v. 
Doud,  10  Ohio,  415;  McQuie  v.  Peay,  58  Mo.  56;  Daggett  v.  Rankin,  31  Cal. 
322;  Atkinson  v.  Miller,  34  W.  Va.  115,  11  S.  E.  1007;  Frank  v.  Hicks  (Wyo.) 
35  Pac.  475. 

T»  Gest  V.  Packwood,  39  Fed.  525;   Hulett  v.  Soullard,  26  Vt.  295, 

«o  Joseph  Smith  Co.  v.  McGuinness,  14  B.  I,  59. 

81  Shoecraft  v.  Bloxham,  124  U.  S.  730,  8  Sup.  Ct.  686;  Fitzhugh  v.  Smith, 
62  111.  486;  Brockway  v.  Wells,  1  Paige  (N.  Y.)  617;  Burrows  v.  Hovland,  40 
Neb.  464,  58  N.  W.  947. 

82  See  Baker  v.  Colony,  45  111.  264;    Sinclair  v.  Armltage,  12  N.  J.  Eq.  174. 
•  8  Curtis  V.  Buckley,  14  Kan.  449. 


192  ESTATES    AS    TO    QUALITY MORTGAGES.  CCb.   9 

vendee  cannot  subsequently  rescind  the  contract"     Every  such  as- 
signment carries  whatever  interest  the  mortgagor  has." 

Sams — Deposit  of  Title  Deeds. 

At  common  law,  and  at  present  in  England,  a  valid  mortgage  may 
be  made  by  the  deposit  of  title  deeds;  the  absence  of  the  deeds,  or 
any  of  them,  being  considered  notice  to  subsequent  purchasers  that 
the  owner's  title  was  not  perfect."  This  form  of  security,  however, 
is  recognized  in  only  a  few  of  our  states,"  and  it  is  quite  inconsistent 
with  our  registry  system."  A  deposit  of  title  deeds,  accompanied 
by  a  written  memorandum,  may,  however,  constitute  an  equitable 
mortgage.®* 

Same —  Vendor'' s  Lien. 

At  common  law,  whenever  there  is  a  conveyance  of  land,  and  the 
purchase  price  is  not  paid,  a  lien  arises  in  favor  of  the  grantor.^"  In 
some  states  it  is  held  that  such  a  lien  does  not  exist,^^  and  in  some 

84  After  notice  to  the  vendor.    1  Jones,  Mortg.  (5th  Ed.)  §  172. 
8B  Muehlberger  v.  Schilling  (Sup.)  3  N.  Y.  Supp.  705. 

86  1  Jones,  Mortg.  (5th  Ed.)  §  179. 

87  Rockwell  V,  Hobby,  2  Sandf.  Ch.  (N.  Y.)  9;  Jarvls  v.  Duteher,  16  Wis.  307; 
bale's  Ex'rs  v.  Moms,  29  N.  J.  Eq.  222;  Griffin  v.  Griffin,  18  N.  J.  Eq.  104; 
Hutzler  v.  Phillips,  26  S.  C.  136,  1  S.  E.  502;  Haekett  v.  Reynolda,  4  R.  I.  612; 
First  Nat.  Bank  v.  Caldwell,  4  Dill.  314,  Fed.  Gas.  No.  4,798. 

88  1  Jones,  Mortg.  (5th  Ed.)  §  185. 

89  Luch'B  Appeal,  44  Pa.  St,  519;  Edwards  v.  Trumbull,  50  Pa.  St.  509. 

90  2  Jones,  Liens  (2d  Ed.)  1063;  Shall  v.  Biscoe,  18  Ark.  142;  Salmon  v. 
Hoffman,  2  Cal.  138;  Francis  v.  Wells,  2  Colo.  660;  Wooten  v.  Bellinger,  17 
Fla.  289;  Moshier  v.  Meek,  80  111.  79;  Keith  v.  Horner,  32  111.  524;  Yaryan  v. 
Shriner,  26  Ind.  364;  Gropengether  v.  Fejervary,  9  Iowa,  16.^;  Thornton  v. 
Knox's  Ex'r,  6  B.  Mon.  (Ky.)  74;  Carr  v.  Hobbs,  11  Md.  285;  Payne  v.  Avery, 
21  Mich.  524;  Duke  v.  Bulme,  16  Minn.  306  (Gil.  270);  Dodge  v.  Evans,  43  Miss. 
570;  Bennett  v.  Shipley,  82  Mo.  448;  Reese  v.  Kinkead,  18  Nev.  126,  1  Pac. 
667;  Herbert  v.  Scotield,  9  N.  J.  Eq.  492;  Smith  v.  Smith,  9  Abb.  Prac.  (N.  S.) 
420;  Stafford  v.  Van  Rensselaer,  9  Cow.  (N.  Y.)  316;  Pease  v.  Kelly,  3  Or.  417; 
Kent  V.  Gerhard,  12  R.  I.  92;  Ross  v.  Whitson,  6  Yerg.  (Tenn.)  50;  Pinchain 
V.  Collard,  13  Tex.  333;   Willard  v.  Reas,  26  Wis.  540. 

91  Godwin  v.  ColUns,  3  Del.  Ch.  189,  affirmed  4  Houst.  (Del.)  28;  Simpson  v. 
Mundee,  3  Kan.  172;  Phllbrook  v.  Delano,  29  Me.  410;  Ahrend  v,  Odlome,  118 
Mass.  261;  Edminster  v.  Higgins,  6  Neb.  265;  Wamble  v.  Battle,  3  Ired.  Eq. 
(N.  C.)  182;  Hiester  v.  Green,  48  Pa.  St.  96;  Wragg  v.  Comptroller  General,  2 
Desaus.  Eq.  (S.  C.  509.  In  some  states  the  question  is  unsettled.  Atwood 
T.  Vincent,  17  Con  i.  575;   Arlin  v.  Brown,  44  N.  H.  103. 


§    114)  FORM    OF    A    MORTGAGE.  193 

It  has  been  abolisked  by  statute.*'  All  subsequent  purchasers 
through  the  grantee,  who  have  notice  of  the  lien,  take  the  land  sub- 
ject thereto.®*  Recitals  in  the  vendor's  deed  that  the  purchase 
money  is  unpaid,'*  and  continued  possession  by  the  vendor,  are  held 
to  be  notice  to  such  purchasers.®''  A  vendor's  lien  is  not  good 
against  judgment  creditors  of  the  vendee,  without  notice."  The 
vendor  may  waive  his  lien  by  acts  which  show  an  intention  not  to 
rely  on  it  for  security.®^  Taking  the  vendee's  note  will  not  consti- 
tute a  waiver,  unless  the  note  is  negotiated.'*  But  it  is  waived 
by  taking  the  note  of  the  vendee  with  an  indorser  or  guarantor,'* 
OP  other  collateral  security.^'"  So,  too,  it  may  be  waived  by  express 
agreement. ^"^  A  vendor's  lien  cannot  be  reserved  in  favor  of  a 
third  person  who  has  paid  the  purchase  price,^***  nor  in  most  states 
does  it  pass  by  assignment.^" 

»»  1  Stlm.  Am.  St.  Law,  §  1950. 

»3  And  those  who  are  not  purchasers  for  value.  Beal  v.  Harrington,  116  111. 
113,  4  N.  E,  664;  Petry  v.  Ambrosher,  100  Ind.  510;  Strohm  v.  Good,  113  Ind. 
93,  14  N.  B.  901;  Webster  v.  McCullough,  61  Iowa,  496,  16  N.  W.  578;  Thomas 
V.  Bridges,  73  Mo.  530;   Butterfield  v.  Okie,  36  N.  J.  Eq.  482, 

»*  De  Cordova  v.  Hood,  17  Wall.  1;  Daughaday  t,  Paine,  6  Minn.  443  (Gil. 
304);   WUlls  V.  Gay,  48  Tex.  463;  McRImmon  v.  aiartin,  14  Tex.  318. 

9  8  Melross  v.  Scott,  18  Ind.  250. 

»«  Allen  V.  Lorlng,  34  Iowa,  499;  Webb  v.  Robinson,  14  Ga.  216;  Qann  v. 
Chester,  5  Yerg.  (Tenn.)  205;  Adams  v.  Buchanan,  49  Mo.  64;  Bayley  v.  Green- 
leaf,  7  Wheat.  46;  Hulett  v,  Whipple,  58  Barb.  (N.  Y.)  224;  Johnson  v.  Caw- 
thorn,  1  Dev.  &  B.  Eq.  (N.  C.)  32.  But  see  Poe  v.  Paxton's  Heirs,  26  W.  Va. 
607;  Lissa  v.  Posey,  64  Miss.  352,  1  South.  500;  Lewis  v.  Caperton's  Ex'r,  8 
Grat.  (Va.)  148;    Bowman  v.  Faw,  5  Lea  (Tenn.)  472. 

«7  Moshier  v.  Meek,  80  III.  79;    Perry  v.  Grant,  10  R.  I.  334. 

»8  White  V.  Williams,  1  Paige  (N.  Y.)  502;  Garson  v.  Green,  1  Johns.  Cli-  (N 
Y.)  308;  Warren  v,  Fenn,  28  Barb.  (N.  Y.)  333;  Aldridge  v.  Dunn,  7  Blackf. 
(Ind.)  249;    Baum  v.  Grigsby,  21  CaL  173. 

»9  Hazeltine  v.  Moore,  21  Hun  (N.  Y,)  355;  Burette  v.  Briggs,  47  Mo.  856 
Haskell  v.  Scott,  56  Ind.  564. 

100  Orrick  v.  Durham,  79  Mo.  174;  Avery  v.  Clark,  87  Cal.  619,  25  Pac.  919 
Hunt  V.  Waterman,  12  Cal.  301. 

101  Donovan  v.  Donovan,  85  Mich.  63,  48  N.  W.  163;  McCarty  t.  Williams, 
69  Ala.  174;   WiUiams  v,  McCarty,  74  Ala,  295. 

102  Crane  v.  Caldwell,  14  111.  468;  Nottes'  Appeal,  45  Pa.  St.  361;  Brown  v. 
Budd,  2  Ind,  442.  But  see  Nichols  r.  Glover,  41  Ind.  24;  Hamilton  v,  Gilbert, 
2  Heisk.  (Tenn.)  680. 

198  Baum  V.  Grigsby,  21  Cal.  172;    Webb  v.  Robinson,  14  Ga.  216;   Keith  v. 

BEAL  PROP.  — 13 


194  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.    9 

Same —  Vendee^ s  Lien. 

A  vendee  also  has  a  lien  before  he  acquires  possession  for  the 
amount  he  has  advanced.^ °*  A  subsequent  grantee  of  the  vendor 
takes  the  land  subject  to  this  lien,  if  he  has  notice  of  it.^"  The 
vendee,  after  notice  of  a  conveyance  by  the  vendor,  must  pay  the 
balance  of  the  purchase  price  to  the  second  vendee,  who  is  in  fact 
an  assignor  of  the  vendor's  rights;  but  if  the  vendee  has  no  notice 
of  such  assignment,  and  pays  the  purchase  price  to  the  vendor,  he 
is  protected.^"*  The  other  incidents  of  the  vendee's  lien  are  prac- 
tically the  same  as  of  the  vendor's  lien.^°^ 

RIGHTS  AND  LIABILITIES  OF  MORTGAGOR  AND  MORTGA- 
GEE. 

115.  The  rights  and  liabilities  of  mortgagor   and  mortga- 
gee •will  be   considered  under  the  following  heads: 

(a)  Nature  of  mortgagor's  estates  (p.  195). 

(b)  Possession  of  mortgaged  premises  (p.  196). 

(c)  Insurance  on  mortgaged  premises  (p.  197). 

(d)  Accounting  by  the  mortgagee  (p.  199). 
<e)  Subrogation  (p.  203). 

Homer,  32  111.  524;  Carpenter  v.  Mitchell,  54  111.  126;  Hammond  v.  Peyton. 
:34  Minn.  529,  27  N.  W.  72;  White  v.  Williams,  1  Paige  (N.  Y.)  502;  First  Nat. 
Bank  of  Salem  v.  Salem  Capital  Flour-Mills  Co.,  39  Fed.  89;  Tharpe  v.  Dun- 
iap,  4  Heisk.  (Tenn.)  674.  But  see  Carlton  v.  Buckner,  28  Ark.  66;  Dixon  v. 
Dixon,  1  Md.  Ch.  220;  and,  contra.  Weaver  v.  Brown,  87  Ala,  533,  8  South. 
854;  Honore's  Ex'r  v.  Bakewell,  6  B.  Mon.  (Ky.)  67;  Sloan  v.  Campbell,  71 
Mo.  387;  Cannon  v.  McDaniel,  46  Tex.  305;  Board  v.  Wilson,  34  W.  Va.  609, 
12  S.  E.  778. 

104  Lane  v.  Ludlow,  6  Paige  (N.  Y.)  316  note;  Wickman  v.  Robinson,  14  Wis. 
635;  Small  v.  Small,  16  S.  C.  64;  Cooper  v.  Merritt,  30  Ark.  687;  Stewart  v. 
Wood,  63  Mo.  252;   Galbraith  v.  Reeves,  82  Tex.  357,  18  S.  W.  696. 

105  Clark  v.  Jacobs,  56  How.  Prac.  (N.  Y.)  519;  Shirley  v.  Shirley,  7  Blackf. 
(Ind.)  452;  Stewart  v.  Wood,  63  Mo.  252. 

106  Rose  V.  Watson,  10  H.  L.  Cas.  672. 

107  Payne  v.  Atterbury,  Har.  (Mich.)  414;  Anderson  v.  Spencer,  51  Miss. 
869;   Mackreth  v.  Symmons,  16  Ve&  345;   Burgeaa  r.  Wheate,  1  W.  Bl.  150. 


§    116)  NATURE   OF   MORTOAGOE's    ESTATE.  195 


SAME— NATURE  OP  MORTGAGOR'S  ESTATE. 

116.  The  mortgagor  is  owner  of  the  mortgaged  prem.ises, 
as  to  all  persons  except  the  mortgagee. 

As  stated  in  the  black-letter  text,  the  mortgagor  is  owner  of  the 
estate,  as  to  all  persons  except  the  mortgage'?.^'**  The  mortgagor 
or  his  assignees  do  not  hold  adversely  to  the  mortgagee,^**'  and  are 
estopped  to  deny  the  validity  of  the  mortgage.^  ^°  The  mortgagor 
may  disseise  the  mortgagee  by  repudiating  the  mortgage,  and  hold 
adversely  from  that  tima^^^  A  disseisin  of  the  mortgagor  is  a 
disseisin  of  the  mortgagee  also.^^'  All  improvements  made  by  the 
mortgagor  inm'e  to  the  benefit  of  the  mortgagee.^^^  The  mort- 
gagor must  pay  taxes  on  the  mortgaged  land,^^*  and  he  will  be  en- 
joined from  committing  any  waste  which  would  impair  the  mort- 
gage security,  such  as  cutting  timber  or  removing  buildings. ^^^ 
Such  an  injunction  may  be  obtained  by  a  surety  of  the  mortgagor.^^' 
The  same  remedy  is  provided  against  the  grantees  of  the  mort- 
gagor.^^^     A  mortgagor  in  possession  is  entitled  to  reasonable  esto- 

108  Turner  Coal  Co.  v.  Glover,  101  Ala.  289,  13  South.  478.  The  mortgagor 
may  sue  for  injuries  to  the  mortgaged  premises,  whether  In  possession  or  not. 
Frankenthal  v.  Mayer,  54  111.  App.  160;  Heltkamp  v.  Granite  Co.,  59  Mo.  App. 
244;  Atwood  v.  Pulp  Co.,  85  Me.  379,  27  Atl.  259. 

109  Wright  V.  SpeiTy,  25  Wis.  617;  Seeley  v.  Manning,  37  Wis.  574;  Doyle 
V.  Mellen,  15  R.  I.  523,  8  Atl.  709. 

110  Skelton  v.  Scott,  18  Hun  (N.  Y.)  375;  Fisher  v.  Milmine,  94  m.  328; 
Kemgood  v.  Davis,  21  S.  C.  183. 

111  Benton  Co.  v.  Czarlinsky,  101  Mo.  275,  14  S.  W.  114;  Jamison  v.  Perry, 
38  Iowa,  14.     Contra,  Hunt  v.  Hunt,  14  Pick.  (Mass.)  374. 

112  Poignand  v.  Smith,  8  Pick.  (Mass.)  272. 

113  Ivy  V.  Yancey,  129  Mo.  501,  31  S.  W.  937,  And  see  Malone  v.  Roy,  107 
Cal.  518,  40  Pac.  1040. 

11*  Mann  V.  Mann,  49  111.  App.  472;  Mutual  Life  Ins.  Go.  of  New  York  v. 
Newell,  78  Hun,  293,  28  N.  Y.  Supp.  913.  Cf.  W^ood  v.  Armour,  88  Wis.  488, 
60  N.  W.  791;    Raymond  v.  Palmer,  47  La.  Ann.  786,  17  South.  312. 

iioFalrbank  v.  Cudworth,  33  Wis.  358;  Scott  v.  Webster,  50  Wis.  53,  6  N. 
W.  363;  Dorr  v.  Dudderar.  88  111.  107;  Vemer  v.  Betz,  46  N.  J.  Eq.  256,  19  Atl. 
206;  Adams  v.  Corriston,  7  Minn.  456  (Gil.  365).  And  see,  as  to  the  abandon- 
ment of  an  easement,  Duval  v.  Becker,  81  Md.  537,  32  Atl.  308. 

118  Johnson  v.  White,  11  Barb.  (N.  Y.)  194. 

»iT  Coker  v.  Whitlock,  54  Ala.  ISO. 


196  ESTATES    AS    TO    QUALITY MOBTQAQES.  (Ch.   9 

vers,^^'  and  the  mortgagee  has  no  claim  on  the  crops  raised  by  him.^** 
He  is  not,  however,  entitled  to  emblements,  as  when  the  mortgagee, 
being  entitled  to  possession,  enters  on  the  mortgagor  before  har- 
vest.^*" A  tenant  of  the  mortgagor  under  a  lease  executed  subse- 
quently to  the  mortgage  is  in  the  same  position,  and,  when  ejected 
by  the  mortgagee,  is  not  entitled  to  the  crops  planted  by  him.^"* 

SAME— POSSESSION  OF  MORTGAGED  PREMISES. 

117.  The  mortgagee  is  entitled  to  possession,  unless  it  is 
other-wise  provided: 

(a)  By  statute,  as  in  many  states. 

(b)  By  agreement  of  the  parties,  which  may  be  either: 

(1)  Express,  or 

(2)  Implied. 

The  mortgagor  is  entitled  to  possession  against  every  one  except 
the  mortgagee  and  those  claiming  under  him."'  But  at  common 
law  the  mortgagee  may  take  possession  at  any  time.^"  Now,  how- 
ever, the  mortgagor  usually  remains  in  possession;  at  least,  until 
breach  of  condition.  This  is  due  to  statutory  enactments  in  many 
states.^^*     And  where  there  is  no  statute  it  is  usually  provided  in 

118  Hapgood  V.  Blood,  11  Gray  (Mass.)  400;  Wright  v.  Lake,  30  Vt  206;  Jud- 
klns  V.  .Woodman,  81  Me.  351,  17  Atl.  298. 

118  Woodward  v.  Pickett,  8  Gray  (Mass.)  617;  Allen  v.  Elderkln,  62  Wis. 
627,  22  N.  W.  842;  Tobey  v.  Reed,  9  Conn.  216.  But  see  Coor  v.  Smith,  101  N. 
C.  261,  7  S.  E.  669. 

120  Downard  v.  Groff,  40  Iowa,  597;  GUlett  t.  Balcom,  6  Barb.  (N.  Y.)  371; 
Gilman  v.  Wills,  66  Me.  273, 

121  Jones  V.  Thomas,  8  Blackf.  (Ind.)  428. 

122  Huckins  v.  Straw,  34  Me.  166;  Stlnson  v.  Ross,  51  Me.  556;  Ellison  v. 
Daniels,  11  N.  H.  274;  Doe  v.  McLoskey,  1  Ala.  708;  Bartlett  v.  Borden,  13 
Bush  (Ky.)  45. 

123  Smith  V.  Shuler,  12  Serg.  &  R.  (Pa.)  240;  Youngman  v.  Railroad  Co..  65 
Pa.  St.  278;  Barrett  v.  Hinckley,  124  111.  32,  14  N.  E.  863;  Merahon  v.  Castree 
(N.  J.  Sup.)  81  Atl.  602,  And  see  Springer  v.  Lehman,  50  111.  App.  139; 
Brundage  v.  Association,  11  Wash.  St  277,  39  Pac.  666.  Cf.,  however.  Ar- 
mour Pack.  Co.  V.  Wolff,  59  Mo.  App.  665. 

124  See  1  Stlm.  Am.  St.  Law,  §§  1882,  1883.  And  see  Michigan  Trust  Co.  v. 
Lansing  Lumber  Co.,  103  Mich.  392,  61  N.  W.  668;  Cullen  v.  Triist  Co.,  60 
Minn.  6,  61  N.  W,  818. 


§    118)  INSURANCE    ON    MORTGAGED    PREMISKB.  197 

the  mortgage  that  the  mortgagor  shall  retain  the  possession.  The 
agreement  as  to  possession  may  be  contained  in  a  separate  inrtru- 
ment.  The  intention  of  the  parties  that  the  mortgagor  shall  retain 
possession  may  often  be  implied  from  the  terms  of  the  mortgage; 
for  instance,  where  there  is  provision  that  the  mortgagor  shall  cul- 
tivate the  farm  mortgaged,  and  give  one-half  the  crops  to  the  mort- 
gagee, to  be  applied  in  payment  of  the  debt,^^"^  But  by  remaining 
in  possession  after  the  execution  of  the  mortgage  the  mortgagor 
does  not  acquire  a  right  to  continue  in  possession.^ ^®  When  the 
mortgagor  is  rightfully  in  possession,  he  may  bring  any  possessory 
action  for  the  protection  of  the  estate.^ ^^  He  need  not  pay  rent  to 
the  mortgagee,  even  in  states  where  the  latter  is  considered  the  own- 
er of  the  legal  title.^*" 


SAME— INSURANCE  ON  MORTGAGED  PREMISES. 

118.  The  mortgagor  and  the  mortgagee  each  have   an  in- 
surable interest  in  the  mortgaged  premises. 

Both  the  mortgagor  and  the  mortgagee  have  an  insurable  inter- 
est in  the  mortgaged  premises.  The  mortgagor  may  insure  them  to 
their  full  value.^^''  His  insurable  interest  continues,  after  a  sale  of 
his  equity  of  redemption  on  execution,  until  his  right  to  redeem 
from  such  sale  is  barred.*^"  If  he  has  assigned  the  equity  of  re- 
demption, and  his  grantee  has  assumed  the  mortgage  note,  he  still 
has  an  insurable  interest,  since  he  remains  liable  on  the  mortgage 
note  as  a  surety.^^^  A  covenant  is  usually  inserted  in  the  mortgage 
that  the  mortgagor  shall  keep  the  premises  insured  for  the  benefit 

Its  Flagg  V.  Flagg,  11  Pick.  (Mass.)  475.  And  see  Hartshorn  v.  Hubbard,  2 
N.  H.  453;   Flanders  v.  Lamphear,  9  N.  H.  201;   Lamb  v.  Foss,  21  Me.  240. 

126  Wakeman  v.  Banks,  2  Conn.  445. 

127  Morse  v.  Whltcher,  64  N.  H.  590,  15  Atl.  217;  Great  Falls  Co.  v.  Worster, 
15  N.  H.  412. 

128  1  Jones,  Mortg.  (5th  Ed.)  §  670. 

i2»  Insurance  Co.  v.  Stinson,  103  U.  S.  25;  Carpenter  v.  Insurance  Co.,  16 
Pet.  495;  Stephens  v.  Insurance  Co.,  48  111.  827;  Illinois  Fire  Ins.  Co.  v.  Stan- 
ton, 57  111.  354. 

18  0  Strong  V.  Insurance  Co.,  10  Pick.  (Mass.)  40. 

181  Waring  v.  Loder,  53  N.  Y.  581. 


198  ESTATES    AS   TO    QUALITY MORTQAQES.  (Ch.   9 

of  the  mortgagee.  In  such  case,  if  the  mortgagor  should  insure  in 
his  own  name,  the  mortgagee  has  a  lien  on  the  insurance  money/" 
but  not  unless  there  is  such  covenant^"  When  the  mortgagor  in- 
sures for  the  benefit  of  the  mortgagee,  anything  which  makes  the 
policy  void  as  to  the  mortgagor  makes  it  void  as  to  the  mortgagee, 
unless  there  be  a  pro\4sion  in  the  policy  to  the  contrary.^ ^*  The 
mortgagor  cannot  bind  the  mortgagee,  for  whose  benefit  he  has 
taken  insurance,  by  a  release  or  adjustment.^'"  In  case  of  a  loss 
under  such  a  policy,  the  mortgagee  must  apply  the  insurance  money 
to  the  mortgage  debt,  if  it  be  due.^^"  If  it  is  not  due,  such  applica- 
tion cannot  be  made  without  the  consent  of  the  mortgagor.^"  A 
provision  in  the  policy  of  insurance  forbidding  alienation  by  the 
owner  is  not  broken  by  a  mortgage  of  the  premises  until  the  mort- 
gage is  foreclosed.^ ^*  Such  a  mortgage  is,  however,  a  breach  of  a 
covenant  against  change  of  ownership.^ ^® 

The  mortgagee  may  also  insure,  and  it  Mall  not  constitute  double 
insurance.^*"     The  mortgagee  has  an  insurable  interest  equal  to 

isa  Wheeler  v.  Insurance  (5o.,  101  U.  S.  439;  In  re  Sands  Ale  Brewing  Co.. 
3  Blss.  175,  Fed.  Cas.  No.  12,307;  Cromwell  v.  Insurance  Co.,  44  N.  Y.  42; 
Wattengel  v.  Schultz,  11  Misc.  Rep.  165,  32  N.  Y.  Supp.  91;  Carter  v.  Insur- 
ance Co.,  8  Paige  (N.  Y.)  437;  Miller  v.  Aldrich,  81  Mich.  408;  Ames  v.  Rich- 
ardson, 29  Minn.  330,  13  N.  W.  137. 

183  Carter  v.  Insurance  Co.,  8  Paige  (N.  Y.)  437;  Columbia  Ins.  Co.  of 
Alexandria  v.  Lawrence,  10  Pet.  507;  McDonald  v.  Black,  20  Ohio,  185;  Ryan 
T.  Adamson,  57  Iowa,  30,  10  N.  W.  287;  Plimpton  v.  Insurance  Co.,  43  Vt  497; 
Nichols  V.  Baxter,  5  R.  I.  491. 

184  Springfield  Fire  &  Marine  Ins.  Co.  v.  Allen,  43  N.  Y.  389. 
18  B  Hazard  v.  Draper,  7  Allen  (Mass.)  267. 

18  e  Waring  v.  Loder,  53  N.  Y.  581. 

i«T  Fergus  v.  Wllmarth,  117  IlL  542,  7  N.  E.  508;  Gordon  v.  Bank,  115  Mass. 
588. 

188  Powers  V.  Insurance  Co.,  136  Mass.  108;  Judge  v.  Insurance  Co.,  132 
Mass.  521;  Conover  v.  Insurance  Co.,  3  Denio  (N.  Y.)  254;  Aurora  Fire  Ins. 
Co.  v.  Eddy,  55  111.  213;  Hartford  Fire  Ins.  Co.  v.  Walsh,  54  111.  164;  Loy  v. 
Insurance  Co.,  24  Minn.  315.  Otherwise  in  some  states  when  the  mortgage 
is  by  deed  absolute.  Western  Massachusetts  Ins.  Co.  v.  Riker,  10  Mich.  279. 
And  see  Foote  v.  Insurance  Co.,  119  Mass.  259;  Tomlinson  v.  Insurance  Co., 
47  Me.  232. 

189  E^dmands  v.  Insurance  Co.,  1  Allen  (Mass.)  311. 

1*0  Carpenter  v.  Insurance  Co.,  16  Pet.  495;  Westchester  Fire  Ins.  Co,  t. 
Foster,  90  111.  121;  Aetna  Fire  Ins.  Co.  v.  Tyler,  IG  Wend.  (N.  Y.)  38o.    So  a 


§§    119-122  ACX30UNTINa    BY   THE    MOBTGAGEE.  199 

the  amount  of  his  lien,  if  that  does  not  exceed  the  value  of  the  mort- 
gaged property.^ *^  This  interest  continues  after  an  assignment  of 
the  mortgage  and  the  mortgage  debt,  if  he  is  liable  to  the  assignee, 
as  by  an  indorsement  of  the  note.^*'  If  the  mortgagee  insures,  he 
cannot  charge  the  premiums  paid  to  the  mortgagor,^*^  unless  the 
latter  has  covenanted  to  insure,  and  has  failed  to  do  so;  ^**  nor  can 
he  charge  the  premiums  to  the  mortgagor,  when  he  insures  only  his 
own  interest/*"  When  the  insurance  is  of  the  mortgagee's  inter- 
est, the  loss  is  payable,  whether  the  property  remaining  is  sufficient 
security  for  the  mortgage  debt  or  not.^*'  But  the  insurer  is  subro- 
gated to  the  rights  of  the  mortgagee,  to  the  amount  of  the  loss.^*^ 
In  such  case  the  insurance,  of  course,  is  of  no  benefit  to  the  mort- 
gagor.^** When  the  insurance  is  in  the  name  of  the  mortgagor,  or 
is  taken  out  by  him  for  the  benefit  of  the  mortgagee,  the  insurer  has 
no  right  to  subrogation.^*' 

SAME— ACCOUNTING  BY  THE  MORTGAGEE. 

119.  A  mortgagee,   or  Ms   assignee,   in   possession,    must 

account  to  the  mortgagor. 

120.  DEBITS — He  is  liable  for  the  rents  and  profits  of  the 

land,  and  for  damages  caused  by  waste  (p.  200). 

trustee  under  a  deed  of  trust  has  an  Insurable  interest.  Dick  v.  Insurance 
Co.,  81  Mo.  103. 

1*1  Excelsior  Fire  Ins.  Co.  v.  Royal  Ins.  Co.,  55  N.  Y.  843;  Sussex  Co.  Mut. 
Ins.  Co.  V.  Woodruff,  26  N.  J.  Law,  541. 

142  Williams  v.  Insurance  Co.,  107  Mass.  377, 

1*8  Faure  v.  Winans,  Hopk.  Ch.  (N.  Y.)  283. 

144  Fowley  v.  Palmer,  5  Gray  (Mass.)  549;  Garza  v.  Investment  Co.  (Tex. 
Civ.  App.)  27  S.  W.  1090. 

1*8  1  Jones,  Mortg.  (oth  Ed.)  §  414. 

1*8  Kernochan  v.  Insurance  Co.,  17  N.  Y.  428,  435;  Excelsior  Fire  Ins.  Co. 
V.  Royal  Ins.  Co.,  55  N.  Y.  343. 

1*7  Norwich  Fire  Ins.  Co.  v.  Boomer,  52  111.  442;  Foster  v.  Van  Reed,  70 
N.  Y.  20;  Bound  Brook  Mut  Fire  Ins.  Ass'n  v.  Nelson,  41  N.  J.  Eq.  485,  5 
Atl.  590;   Concord  Union  Mut.  Fire  Ins.  Co.  v.  W<x>dbury,  45  Me.  447. 

1*8  White  V.  Brown,  2  Cush.  (Mass.)  412;  Ely  v.  Ely,  80  111.  532;  Stinch- 
fleld  V.  Milllken,  71  Me.  567. 

1*8  Cone  V.  Insurance  Co.,  60  N.  Y.  619. 


200  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9 

121.  CREDITS — He   is   to  be  credited  with  amounts  paid 

for  repairs  and  reasonable  improvements,  the  ex- 
pense of  collecting  the  rents,  taxes  paid,  and  sums 
expended  in  removing  incumbrances  and  in  pro- 
tecting the  property  (p.  201). 

122.  ANNUAL   RESTS— In  computing  the   account,  rests 

are  made  whenever,  at  the  end  of  an  interest  pe- 
riod, the  net  debits  exceed  the  interest  due  (p.  202). 

When  the  mortgagee  is  in  possession,  he  must  account  for  the 
rents  and  profits  received,  and  apply  them  to  the  reduction  of  the 
mortgage  debt.^''°  The  remedy  of  accounting  can  be  had  only  in 
equity.^"  The  mortgagor  is  not  entitled  to  an  accounting  unless  he 
redeems  the  mortgage,  or  on  foreclosure.^"^'  A  junior  mortgagee  who 
redeems  a  prior  mortgage  is  entitled  to  an  accounting  from  the  prior 
mortgagee,  if  he  has  been  in  possession.^"'  An  assignee  of  the 
mortgagee,  who  takes  possession,  must  account,^"*  and  an  account- 
ing can  be  compelled  by  the  assignee  of  the  mortgagor.^ ^* 

Debits. 

The  mortgagee  is  chargeable  with  whatever  he  has  collected  as 
rents  and  profits  of  the  mortgaged  premises,^ °^  or  what  he  should 
hare  received  if  he  had  managed  the  estate  as  a  prudent  owner.^'^ 

150  Reltenbaugh  v.  Ludwick,  31  Ta.  St.  131;  Chapman  v.  Porter,  69  N.  Y. 
276;  Dawson  v.  Drake,  30  N.  J.  Eq.  601;  Roonev  v.  Crary,  11  111.  App.  213; 
Wood  v.  Whelen,  93  111.  153;  Byers  v.  Byers,  65  Mich.  598,  32  N.  W.  831. 
But  he  must  hold  as  mortgagee.  Daniel  v.  Coker,  70  Ala.  260;  Young  v. 
Omohundro,  69  Md.  424,  16  AtL  120;  Ayers  v.  Staley  (N.  J.  Ch.)  18  Atl.  1046. 

161  Hubbell  V.  Moulson,  53  N.  Y.  225;  Dailey  v.  Abbott,  40  Ark.  275;  Farria 
V.  Houston,  78  Ala.  250. 

152  Weeks  v.  Thomas,  21  Me.  465;  Farris  v.  Houston,  78  Ala.  250. 

1B8  Gaskell  v.  Vlquesney,  122  Ind.  244,  23  N.  E.  791. 

164  Strang  v.  Allen,  44  111.  438. 

186  Ruckman  v.  Astor,  9  Paige  (N.  Y.)  517;  Gelston  v.  Thompson,  29  Md. 
B86. 

iBopeugh  V.  Davis,  113  U.  S.  542,  5  Sup.  Ct.  622;  Strang  v.  Allen,  44  111. 
428;  Donohue  v.  Chase,  139  Mass.  407,  2  N.  E.  84;  Brown  v.  Bank,  148  Mass. 
800,  19  N.  B.  382;  Van  Buren  v.  Olmstead,  5  Paige  (N.  Y.)  9;  Walsh  v.  Insur- 
ance Co..  13  Abb.  Prac.  (.\.  Y.)  33. 

187  Harper  v.  Ely,  70  111.  581;  Engleman  Transp.  Co.  v.  Longwell,  48  Fed. 
129;  Montague  v.  Railroad,  124  Mass,  242. 


§§    119-122)  ACCOUNTING    BY  THE    MORTGAGEE.  201 

He  may  be  liable  for  rents  which  he  has  not  actually  received,  by 
reason  of  his  negligence  in  leasing  to  an  insolvent  tenant,  or  by  em- 
ploying an  incompetent  agent.^"*  A  grantee  under  an  absolute 
deed  which  is  shown  to  be  a  mortgage  is  chargeable  only  with,  the 
reasonable  value  of  the  use  of  the  property.^"  If  the  mortgagee 
himself  occupies  the  premises,  he  must  credit  the  mortgagor  with 
an  amount  equal  to  their  fair  rental  value.^"<>  The  damages  for  any 
waste  committed  while  the  mortgagee  is  in  possession  will  bo  cred- 
ited on  the  mortgage  debt.^®^  The  mortgagee  may  cut  wood  or 
work  a  mine  on  the  mortgaged  premises,  if  such,  is  a  proper  mode 
of  enjoying  the  profits  of  the  estate."'  If  he  does  so,  the  profits 
must  be  accounted  for. 

Credits. 

A  mortgagee  in  possession  must  make  necessary  repairs,*''  and  he 
will  be  allowed,  in  his  accounting,  to  charge  for  any  repairs  made 
by  him  which  are  reasonable.*'*  He  is  also  allowed  the  expense 
of  any  improvements  which  are  proper  for  the  enjoyment  of  the 
premises,  but  not  for  mere  ornamental  improvements.*""  On  the 
other  hand,  he  is  not  chargeable  vrith  an  increased  rental  value  due 
to  improvements  made  by  him  with  which  he  is  not  credited.*®* 

158  Miller  v.  Lincoln,  6  Gray  (Mass.)  556;   Greer  v.  Turner,  36  Ark.  17. 

169  Harper's  Appeal,  64  Pa.  St.  315;  ?iIonx)w  v.  Jones,  41  Neb.  867,  60  N. 
W.  369.  Or  with  what  he  has  actually  received,  If  he  has  not  occupied  per- 
sonally,   Morris  v.  Budlong,  78  N.  Y.  543. 

160  Montgomery  v.  Chadwicli,  7  Iowa,  114;  Holabird  v.  Burr,  17  Conn.  556; 
Sanders  v.  Wilson,  34  Vt.  318. 

161  Onderdonk  v.  Gray,  19  N.  J.  Eq.  65;  Daniel  v.  Coker,  70  Ala.  260.  Cf. 
Whiting  V.  Adams,  66  Vt.  679,  30  Atl.  32. 

162  Irwin  v.  Davidson,  3  Ired.  Eq.  (N.  C.)  311;  Millett  v.  Davey,  31  Beav, 
470. 

163  Barnett  v.  Nelson,  54  Iowa,  41,  6  N.  W.  49;  Dozier  v.  Mitchell,  65  Ala. 
511. 

i«4  Miller  v.  Curry,  124  Ind.  48,  24  N,  E.  219,  374;  Hicklln  v.  Marco,  46  Fed. 
424;  Sparhawk  v.  Wills,  5  Gray  (Mass.)  423;  Woodward  v.  Phillips,  14  Gray 
(Mass.)  132;  Malone  v.  Roy,  107  Cal.  518,  40  Pac.  1040. 

16  5  Harper's  Appeal,  64  Pa.  St.  315;  Rowell  v.  Jewett,  73  Me.  365.  And 
see  American  Button-Hole,  Overseaming  &  Sewing-Mach.  Co.  v.  Burlington 
Mut.  Loan  Ass'n,  68  Iowa,  326,  27  N.  W.  271;  Mickles  t.  Dillaye,  17  N.  T.  80. 

i«6  Hagthorp  v.  Hook's  Adm'rs,  1  Gill  «&  J.  (Md.)  270;  Bell  v.  Mayor,  etc., 
10  Paige  (N.  Y.)  49. 


202  ESTATES    A8    TO    QUALITY MORTGAGES.  (Ch.   9' 

When  a  mortgagee  is  in  possession  under  a  mistaken  belief  that  he 
has  absolute  title,  he  will  be  allowed  compensation  for  all  improve- 
ments erected.^ ®^  The  general  rule  is  that  the  mortgagee  can  claim 
no  compensation  for  his  own  services  in  the  management  of  me 
estate.^"  But  in  some  states  he  is  now  allowed  a  commission  for 
collecting  the  rents.^"  He  may  employ  an  agent  to  manage  the 
property,  when  necessary.^''"  The  principal  disbursements  for 
which  he  may  be  credited  are  taxes  and  assessments;  ^^^  money 
paid  in  discharging  a  prior  incumbrance,^ ^^  or  otherwise  protecting 
the  title;  ^'^  and  expenses  in  preserving  the  property,  such  as  em- 
ploying a  watchman.^ ^*  He  may  charge  for  counsel  fees  necessarily 
expended  in  collecting  the  rents.^^' 

Annual  Rests. 

Whenever  the  rents  and  profits  are  more  than  the  annual  inter- 
est, a  rest  is  made;  that  is,  the  net  amount  of  rents  and  profits  in 
excess  of  the  interest  is  deducted  from  the  mortgage  debt,  and  from 
that  time  interest  is  computed  only  upon  the  balance.^ ^°  If,  at  the 
end  of  any  interest  period,  the  rents  and  profits  are  less  than  the 

i«T  Miner  v,  Beekman,  50  N,  Y.  337;  Roberts  v.  Fleming,  53  III.  19G;  Millard 
V.  Truax,  73  Mich.  381,  41  N.  W.  328;  Hadley  v.  Stewart,  65  Wis.  481,  27  N. 
W.  340;  Bacon  v.  Cottrell,  13  Minn.  IIM  (Gil.  183);  Troost  v.  Davis,  31  Ind.  34. 

168  Eaton  V.  Slmonds,  14  Picli.  (Mass.)  98;  Clark  v.  Smith,  1  N.  J.  Eq.  121; 
Elmer  v.  Loper,  25  N.  J.  Eq.  475. 

189  2  Jones,  Mortg.  (5th  Ed.)  §  1133. 

iTo  Davis  V.  Dendy,  3  Madd.  170;  Harper  v.  Ely,  70  111.  581. 

171  Harper  v.  Ely,  70  111.  581;  Dooley  v.  Potter,  146  Mass.  148,  15  N.  E. 
499;  Sldenberg  v.  Ely,  90  N.  Y.  257;  Gooch  v.  Botts,  110  Mo.  419,  20  S.  W. 
192;  Savings  &  Loan  Soc.  v.  Burnett,  106  Cal.  514,  39  Pac.  922. 

172  McCormlck  v.  Knox,  105  U,  S.  122;  Davis  v.  Bean,  114  Mass.  360;  Com- 
Btock  V.  Michael,  17  Neb.  288,  22  N.  W.  549;  Fitch  v.  Stallings,  5  Colo.  App. 
106,  38  Pac.  393. 

173  Hughes  V.  Johnson,  38  Ark.  285. 

174  Johnson  v,  Hosford,  110  Ind.  572,  10  N.  B.  407. 
17  0  Hubbard  v.  Shaw,  12  Allen  (Mass.)  120. 

176  Van  Vronker  v.  Eastman,  7  Mete.  (IVIass.)  157;  Reed  v.  Reed,  10  Pick. 
(Mass.)  398;  Gladding  v.  Warner,  36  Vt.  54;  Blum  v.  Mitchell,  59  Ala.  535; 
Jencks  v.  Alexander,  11  Paige  (N.  Y.)  619.  And  see  Adams  v.  Sayre,  76 
Ala.  509. 


§§   123-124)  SUBROGATION.  203 

interest  charged,  no  rest  is  made,  bnt  the  account  continues  until 
the  rents  and  profits  due  exceed  the  interest.*" 


SAME— SUBROGATION. 

123.  Whenever  one  not  primarily  liable  for  the  mortgage 

debt  pays  it  to  protect  his  own  rights,  he  is  sub- 
stituted in  equity  in  place  of  the  mortgagee,  and 
may  enforce  against  the  person  primarily  liable  all 
the  securities  held  by  the  mortgagee.  This  is  called 
*'  subrogation." 

124.  The  persons  entitled  to  a  deceased  mortgagor's  realty 

can  compel  the  mortgage  debt  to  be  paid  out  of  his 
personal  property  (p.  204). 

Svhrogation. 

Subrogation  is  a  method  of  enforcing  payment  against  one  ulti- 
mately liable  on  a  mortgage  debt^'»  In  effect,  it  is  an  assignment 
of  the  creditor's  mortgage  and  other  securities  to  the  one  paying  the 
debt.""  Subrogation  does  not  arise  when  part  only  of  the  mort- 
gage debt  is  paid.^®°  It  can  be  claimed  only  in  favor  of  one  who 
has  paid  a  mortgage  debt  not  his  duty  to  pay.^^^  A  mere  volunteer 
cannot  invoke  the  aid  of  subrogation.  He  must  have  paid  under 
some  compulsion  made  necessary  for  the  protection  of  his  rights; 
otherwise  payment  extinguishes  the  debt.*  A  mortgagor  who  has 
conveyed  subject  to  the  mortgage,  and  who  has  been  proceeded 
against  personally  for  the  mortgage  debt,  is  entitled  to  subrogation 

177  Bennett  v.  Cook,  2  Hun  (N.  Y.)  526;  French  v.  Kennedy,  7  Barb.  (N. 
Y.)  452;  Moshler  v.  Norton,  100  lU.  63;  Snavely  v.  Pickle,  29  Grat  (Va.)  27. 

ITS  See  Fetter,  Eq.  p.  254;  Matthews  v.  Trust  Co.,  52  Fed.  687;  McCormick 
V.  Irwin.  35  Pa.  St.  111. 

IT 9  Barnes  v.  Mott,  64  N.  Y.  397;  Ellsworth  v.  Lockwood,  42  N.  Y.  89;  Lay- 
lin  V.  Knox,  41  Mich.  40,  1  N.  W.  913;  Levy  v.  Martin,  48  Wis.  198,  4  N.  W. 
85;  Muir  v.  Berkshire,  52  Ind.  149;  Sessions  v.  Kent,  75  Iowa,  601,  39  N.  W. 
914. 

180  In  re  Graff's  Estate,  139  Pa.  St.  69,  21  Atl.  233. 

181  Arnold  v.  Green,  116  N.  Y.  566,  23  N.  B.  1;  Pease  v.  Egan.  131  N.  Y. 
262,  30  N.  E.  102;   Young  v.  Morgan,  89  Ul.  199. 

*  See  Fetter,  Eq.  254. 


204  ESTATES    AS    TO    QUALITY MORTQAQES.  (Ch.   9 

against  his  grantee.^"  But  one  loaning  money  to  the  mortgagor 
to  pay  the  mortgage  debt  is  not  subrogated  unless  there  be  a  special 
agreement  to  that  effect.**'  An  indorser  of  a  note,  or  a  surety  of 
tJie  mortgage  debt,  are  subrogated  to  the  rights  of  the  mortgagee, 
when  compelled  to  discharge  the  indebtedness.*'*  And  the  prin- 
cipal creditor  is  subrogated  to  any  securities  held  by  the  surety.*" 

Marshal'mg. 

By  the  doctrine  of  marshaling,*"  where  a  prior  mortgagee  is  en- 
titled to  satisfaction  of  his  debt  out  of  two  parcels  of  land,  a  junior 
mortgagee,  who  has  a  lien  on  only  one  of  these  parcels,  may  be 
subrogated  to  the  rights  of  the  prior  mortgagee;  *'^  and  some  eases 
hold  that  the^  prior  mortgagor  may  be  compelled  to  enforce  payment 
as  far  as  possible  out  of  the  land  which  the  subsequent  mortgage 
does  not  cover.*" 

Relief  of  the  Heal  hy  the  Personal  Estate. 

The  personal  estate  of  a  decedent  is  the  primary  fund  for  the  pay- 
ment of  his  debts,  and  therefore  the  deceased  owner's  personal  prop- 
erty is  to  be  applied  to  the  payment  of  mortgages  on  his  realty,*'® 

182  Johnson  v.  Zink,  51  N.  Y.  333;  Stillman's  Ex'rs  v.  Stlllman,  21  N.  J.  Eq. 
126;  Greenwell  v.  Heritage,  71  Mo.  459. 

188  Wilton  v.  Mayberry,  75  Wis.  191,  43  N.  W.  901;  Downer  v.  Miller,  15 
Wis.  612;  Kitcbell  v.  Mudgett,  37  Mich.  81;  Bolman  v.  Lohman,  74  Ala.  507. 

18*  Gossin  V.  Brown,  11  Pa.  St.  527;  Richeson  y.  Crawford,  94  111.  165; 
Dick  V.  Moon,  26  Minn.  309,  4  N.  W.  39;  Motley  v.  HaiTis,  1  Lea    (Tenn.)  577. 

i85Demott  V.  Manufacturing  Co.,  32  N.  J.  Eq.  124. 

186  See  Fetter,  Eq.  p.  256. 

18T  Detroit  Sav.  Bank  v.  Truesdall,  38  Mich.  430;  Alexander  v.  Welch,  10 
111.  App.  181;  Washington  BIdg.  &  Loan  Ass'n  v.  Beaghen,  27  N.  J.  Eq.  98; 
Herbert  v.  Association,  17  N.  J.  Eq.  497. 

188  Ball  V.  Setzer,  33  W.  Va.  444,  10  S.  E.  798;  Sherron  v.  Acton  (N.  J.  Ch.) 
18  Atl.  978;  Abbott  v.  Powell,  6  Sawy.  91,  Fed.  Cas.  No.  13.  And  see,  for 
other  applications.  Brown  v.  McKay,  151  111.  315,  37  N.  B.  1037;  Cullen  v. 
Tinist  Co.,  8  Minn.  6,  61  N.  W.  818;  Witt  v.  Rice,  90  Iowa,  451,  57  N.  W.  951; 
Henkel  v.  Bohnke,  7  Tex.  Civ.  App.  16,  26  S.  W.  645;  Hanes  v.  Denby  (N.  J. 
Ch.)  28  Atl.  798;    Black  v.  Reno,  59  Fed.  917. 

188  Hoff's  Appeal,  24  Pa.  St.  200;  Lupton  v.  Lupton,  2  Johns.  Oh.  (N.  Y.) 
614;  Parsons  v.  Freeman,  Amb.  115;  Woods  v.  Huntingford,  3  Ves.  128.  But 
Bee  Tweddell  v.  Tweddell,  2  Brown,  Ch.  101;  Scott  v.  Beecher,  5  Madd.  96; 
Loosemore  v.  Knapman,  Kay,  123. 


§§    125-120}       ASSIGNMENT   OF   THE    EQUITY    OF   REDEMPTION.  205 

unless  he  has  expressed  a  contrary  intention.^®"  This  right  can, 
however,  be  claimed  only  by  the  widow,  heirs,  or  devisees.^ '^  Nor 
can  it  be  enforced  against  any  others  than  the  personal  represen- 
tative, next  of  kin,  or  residuary  legatee.^"  It  is  not  available 
against  creditors,  or  when  the  personal  estate  is  insolvent,^"  nor 
against  a  specific  legatee.^"* 

ASSIGNMENT  OF  THE  EQUITY  OF   REDEMPTION. 

125.  A  mortgagor   may  assign  his   equity  of  redem^ption, 

but  the  assignment  is  subject  to  the  follo^wing  con- 
ditions, among  others: 

(a)  The  equity  of  redemption  cannot  be  assigned  to  the 

mortgagee  at  the  time  the  mortgage  is  executed. 

(b)  An  assignee  takes  the  land  subject  to  the  mortgage. 

(c)  He  does  not  become  personally  liable  for  the  mort- 

gage debt  unless  he  expressly  assumes  it. 

(d)  In  some  states,  -wrhen  he  does  assume  it,  he  may  be 

sued  personally  by  the  mortgagee. 

126.  An  equity  of  redemption  may  be  transferred  by  op- 

eration of  la-wr,  as: 

(a)  By  descent. 

(b)  By  sale  on  execution. 

No  Mortgage  without  an  Equity  of  Bedemption. 

The  mortgagor's  equity  of  redemption  is  an  inseparable  incident 
of  a  mortgage.  A  mortgage  cannot  be  created  without  an  equity 
of  redemption.  An  instrument  having  that  effect  would  not  be  a 
mortgage,  but  an  absolute  conveyance,  or  a  sale  with  a  right  to  re- 

190  As  by  specific  bequests  of  his  personal  property.  Hoff's  Appeal,  24 
Pa.  St.  200.    See  Serle  v.  St  Elvy,  2  P.  Wms.  386. 

191  Haven  v.  Foster,  9  Pick.  (Mass.)  112;  Lockbart  v.  Hardy,  9  Beav.  379. 
And  see  Duke  of  Cumberland  v.  Codrington,  3  Johns.  Ch.  (N.  Y.)  229. 

192  Hocker's  Appeal,  4  Pa.  St.  497;  Gibson  v.  McCormlck,  10  Gill  &.  J.  (Md.) 
65;    Cope  v.  Cope,  2  Salk.  449. 

19S  Hocker's  Appeal,  4  Pa,  St.  497;  Duke  of  Cumberland  v.  Codrington,  3 
Johns.  Ch.  (N.  Y.)  229. 

194  Oneal  v.  Mead,  1  P.  Wms.  693;  Lutkins  t.  Leigh,  Cas.  t  Talb.  63.  See 
also,  Evelyn  v.  Evelyn,  2  P.  Wms.  659;  Middleton  v.  Middleton,  15  Beav.  450, 


206  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.    9 

purchase.  Nor  can  the  equity  of  redemption  be  assigned  to  the 
mortgagee  at  the  time  the  mortgage  is  executed.^®"  The  mortgagee 
may  purchase  the  equity  of  redemption  at  a  subsequent  time,^"  but 
such  transactions  are  carefully  scrutinized  by  the  courts.^"^ 

Rights  of  an  Assignee. 

After  the  execution  of  a  mortgage  the  mortgagor  may  sell  his 
equity  of  redemption  as  a  whole  or  in  parcels.  So  he  may  make 
successive  mortgages.^®®  But  in  each  case  the  transfer  is  subject 
to  the  previous  mortgage.^®*  The  mortgagee  is  a  purchaser,  to  the 
extent  of  his  claim,  and  as  such  is  protected  under  the  recording 
laws.'^""  He  is  entitled  to  have  the  whole  of  the  mortgaged  premises 
as  security  for  his  debt,  and  cannot  be  made  to  accept  part  of  them 
as  payment.  Nor  can  a  purchaser  of  the  equity  of  redemption  com- 
pel him  to  make  partition.^ °^ 

A  purchaser  of  the  mortgagor's  rights,  or,  as  he  is  usually  called, 
an  "assignee  of  the  equity  of  redemption,"  though  he  takes  the  land 
subject  to  the  mortgage,  may  acquire  a  paramount  title,  and  set  it 
up  against  the  mortgagee,^ °^  unless  he  is  estoi)ped  by  recitals  in  his 
deed.*"'     He  may,  however,  in  such  case,  show  that  the  mortgage 

198  Peugh  T.  Davis,  96  U.  S.  332;  Willets  v.  Burgess,  34  111.  494;  Bayley  v. 
Bailey,  5  Gray  CSIass.)  505. 

198  Ten  Eyck  v.  Craig,  62  N.  Y.  406;  Phelan  v.  De  Martin,  85  Cal.  365,  24 
Pac.  725. 

197  Phelan  v.  De  Martin,  85  Cal.  365,  24  Pac.  725;  Hinkley  v.  Wheelwright, 
29  Md.  341;  Peugh  v.  Davis,  96  U.  S.  332;  Oliver  v.  Cunningham,  7  Fed.  689. 

198  Hodson  V.  Treat,  7  Wis.  263;   Buchanan  v.  Monroe,  22  Tex.  537. 

189  Kruse  v.  Scripps,  11  111.  98;  Hartley  v.  Harrison,  24  N.  Y.  170.  As  to 
leases  of  the  mortgaged  premises,  see  ante,  p.  132. 

200  Rowell  V.  Williams,  54  Wis.  636,  12  N.  AV.  86;  Bass  v.  Wheless,  2  Tenn. 
Ch.  531;  Moore  v.  Walker,  3  Lea  (Tenn.)  656;  Patton  v.  Eberhart,  52  Iowa,  67, 
2  N.  W.  954;     Herff  v.  Griggs,  121  Ind.  471,  23  N.  E.  279. 

201  Spencer  v.  Waterman,  36  Conn.  342;  McConihe  v.  Fales,  107  N.  Y.  404, 
14  N.  E.  285;  Carpenter  v.  Koons,  20  Pa.  St.  222;  Gerdine  v.  Menage,  41  Minn. 
417,  43  N.  W.  91;    Daniel  v.  Wilson,  91  Ga.  238,  18  S.  E.  134. 

20  2  Knox  V.  Easton,  38  Ala.  345. 

208  Such  as,  that  he  takes  subject  to  the  mortgage,  or  assumes  the  mort- 
gage. Kennedy  v.  Borie,  166  Pa.  St  360,  31  Atl.  98.  But  see  Robinson 
Bank  v.  Miller,  153  111.  244,  38  N.  E.  1078.  Nor  can  the  assignee  deny  its 
validity  for  failure  of  consideration,  Crawford  v.  Edwards,  33  Mich.  354; 
Miller  v.  Thompson,  34  Mich.  10;   Haile  v.  Nichols,  16  Hun  (N.  Y.)  37;   or  for 


§§   125-126)       ASSIGNMENT    OF   THE   EQUITY    OF   REDEMPTION.  207 

has  been  paid  by  the  mortgagor,  or  other  matter  in  discharge."* 
The  mortgagor  may  covenant  to  pay  the  mortgage,  but  otherwise 
his  assignee  is  not  entitled  to  compensation  from  the  mortgagor  if 
the  mortgage  is  enforced  against  the  land.*""  Nor  is  a  purchaser 
from  the  mortgagor  entitled  to  collateral  security  held  by  the  mort- 
gagee.^"' An  assignee  of  the  equity  of  redemption  does  not  become 
personally  liable  for  the  mortgage  debt  unless  he  expressly  assumes 
its  payment."^  When  the  grantee  assumes  the  mortgage  debt,  the 
mortgagor  becomes  merely  a  surety  for  him,  and,  if  ]ie  is  forced  to 
pay  the  debt,  may  collect  it  from  his  grantee.^ °*     The  mortgagee 

usury,  Hartley  v,  Harrison,  24  N.  Y.  170;  De  Wolf  v.  Johnson,  10  Wheat.  367; 
Cleaver  v.  Burcky,  17  111.  App.  92;  Frost  v.  Shaw,  10  Iowa,  491.  But  the 
mortgagor  may  confer  on  his  grantee  a  right  to  contest  the  validity  of  the 
mortgage.  Bennett  v.  Bates,  94  N.  Y.  354;  Magie  v.  Reynolds  (N.  J.  Gh.)  26 
All.  150. 

204  Hartley  v.  Tatham,  2  Abb.  Dec.  (N.  Y.)  333;  Williams  v.  Thurlow,.  31  Me. 
31)2;   Bennett  v.  Keehn,  57  Wis.  582,  15  N.  W.  776. 

20  5  Gerdine  v.  Menage,  41  Minn.  417,  43  N.  W.  91;  Gayle  v.  Wilson,  30  Grat. 
(Va.)  166. 

2  06  Brewer  v.  Staples,  3  Sandf.  Ch.  (N.  Y.)  579. 

207  strong  V.  Converse,  8  Allen  (Mass.)  557;  Middaugh  v.  Bachelder,  33  Fed. 
706;  Comstock  v.  Hitt,  37  111.  542;  Trotter  v.  Hughes,  12  N.  Y.  74;  Stebbhis  v. 
Hall,  29  Barb.  (N.  Y.)  524;  Metzger  v.  Huntington,  139  Ind.  501,  37  N.  E.  1084; 
Offut  V.  Cooper,  136  Ind.  701,  36  N.  B.  273;  Green  v.  Hall,  45  Neb.  89,  63  N. 
W.  119;  Granger  v.  Roll  (S.  D.)  62  N.  W.  970.  Such  is  the  effect  of  a  clause  pro- 
viding that  "the  mortgagee  assumes  a  mortgage,"  etc.  Coming  v.  Burton,  102 
Mich.  86,  62  N.  W.  1040;  Stephenson  v.  Elliott,  53  Kan,  550,  36  Pac.  980;  Bur- 
bank  V.  Roots  (Colo.  App.)  35  Pac.  275;  Grand  Island  Sav.  &  loan  Ass'n  v. 
Moore,  40  Neb.  686,  59  N.  W.  115;  Wayman  v.  Jones,  58  Mo.  App.  313;  Wil- 
liams V.  Everham,  90  Iowa,  420,  57  N.  W.  901.  And  see  Lennox  v.  Brower, 
160  Pa.  St.  191,  28  Atl.  839;  Williams  v.  Moody,  95  Ga.  8,  22  S.  E.  30.  But  cf. 
Carrier  v.  Paper  Co.,  73  Hun,  287,  26  N.  Y.  Supp.  414;  Hopper  v.  Calhoun,  52 
Kan.  703,  35  Pac.  816.  But  not  a  provision  that  he  takes  "subject  to  the 
mortgage."  Tanguay  v.  Felthousen,  45  Wis.  30;  Moore's  Appeal,  88  Pa.  St. 
450;  Walker  v.  Goodsill,  54  Mo.  App.  631;  Lang  v.  CadweU,  13  Mont.  458,  ^ 
Pac.  957.  He  may  assume  the  debt  by  a  parol  agreement.  Merriman  v. 
Moore,  90  Pa.  St.  78;   Lamb  v.  Tucker,  42  Iowa,  118. 

ao8  Flagg  V.  Geltmacher,  98  111.  293;  Calvo  v.  Davies,  73  N.  Y.  211;  Alt  v. 
Banholzer,  36  Minn.  57,  29  N.  W.  674;  Williams  v.  Moody,  95  Ga.  8,  22  S.  E. 
30.  The  mortgagor  may  take  an  assignment  of  the  mortgage,  and  foreclose  it 
against  his  grantee.  1  Jones,  Mortg.  (5th  Ed.)  §  768.  He  may  do  this  without 
a  formal  assignment.    Baker  v.  Terrell,  8  Minn.  195  (GiL  165);   Risk  v.  Hoff- 


208  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9 

need  not  accept  such  an  agTeement  between  a  mortgagor  and  his 
grantee;""  but,  if  he  does  accept,  it  constitutes  a  novation,  and 
an  extension  of  time  given  by  the  mortgagee  to  the  grantee  will  dis- 
charge the  mortgagor  from  personal  liability,  since  he  is  merely  a 
surety. ^'^^  When,  however,  it  is  expressed  in  a  subsequent  mort- 
gage that  the  prior  mortgage  is  assumed,  the  subsequent  mortgagee 
does  not  become  personally  liable  for  the  prior  mortgage  debt."^ 
In  some  states  the  mortgagee  may  enforce  an  assumption  of  the 
mortgage  debt  by  an  assignee  of  the  equity  of  redemption.'" 

Assignment  hy  Operation  of  Law. 

On  the  death  of  the  mortgagor  the  equity  of  redemption  passes 
to  his  heirs  according  to  the  rules  of  descent  of  realty.*"  If  the 
mortgage  is  foreclosed  in  his  lifetime,  any  surplus  proceeds  is  per- 
sonalty, and,  on  his  death,  goes  to  his  personal  representative.  But, 
if  the  foreclosure  is  not  until  after  his  death,  the  heirs  are  entitled 

man,  69  Ind.  137.  The  mortgagor  may  bring  an  action  against  his  assignee  to 
enforce  the  promise  before  he  has  himself  paid  the  debt.  Rubens  v.  Prlndle, 
44  Barb.  (N.  Y.)  306. 

209  Fish  V.  Glover,  154  111.  86,  39  N.  E.  1081;  Connecticut  Mut  Life  Ins.  Co. 
T.  Tyler,  8  Biss.  369,  Fed.  Gas.  No.  3,109. 

a  10  Spencer  v.  Spencer,  95  N.  Y.  353;  Murray  v.  Marshall,  94  N.  Y.  611; 
Calvo  v.  Davles,  73  N.  Y.  211;  Union  Mut.  Life  Ins.  Co.  v.  Hanford,  27  Fed. 
588;  George  v.  Andrews,  60  Md.  26;  Travers  v.  Dorr,  60  Minn.  173,  62  N.  W. 
269.     Cf.,  however,  Cook  v.  Prindle  (Iowa)  63  N.  W,  187. 

211  Gamsey  v.  Rogers,  47  N,  Y.  233;  Bassett  v.  Bradley,  48  Conn.  224. 
Even  if  the  mortgage  be  in  form  an  absolute  deed.  Pardee  v.  Treat,  82  N.  Y. 
385;   Cole  v.  Cole,  110  N.  Y.  630, 17  N.  E.  682;    Gaffney  v.  Hiclis,  131  Mass.  124. 

212  1  Jones,  Mortg.  (5th  Ed.)  §  755;  Clark,  Cont.  p.  513;  Winters  v.  Mining 
Co.,  57  Fed.  287;  Trotter  v.  Hughes,  12  N.  Y.  74;  Osborne  v.  Cabell,  77  Va. 
462.  In  some  states  the  mortgagee  can  proceed  only  In  equity.  Willard  v. 
Worsham,  76  Va.  392.  In  these  states  the  mortgagor  cannot  release  the  gran- 
tee from  liability  without  the  mortgagee's  consent.  GifiPord  v.  Corrigan,  117 
N.  Y.  257,  22  N.  E,  756;  Douglass  v.  Wells,  18  Hun  (N.  Y.)  88.  But  see  Gold 
V.  Ogden  (Minn.)  63  N.  W.  266.  In  other  states  the  mortgagee  is  treated  as 
merely  subrogated  to  the  mortgagor's  security,  and  cannot  sue  the  assignee 
directly  at  law.  Keller  v.  Ashford,  133  U.  S.  610,  10  Sup.  Ct.  494;  Booth  v. 
Insurance  Co.,  43  Mich.  299,  5  N.  W.  381;  Crowell  v.  Currier,  27  N.  J.'Eq.  152; 
Biddel  v.  Brizzolara,  64  Cal.  354,  30  Pac.  609.  In  these  states  the  mortgagor 
may  release  his  grantee  without  the  assent  of  the  mortgagee.  O'Neill  v, 
Clark,  33  N.  J.  Eq.  444. 

218  See  post,  p.  478. 


§§    127-129)  ASSIGNMENT    OF    THE    MORTGAGE.  209 

to  the  surplus.  ***  An  equity  of  redemption  may  be  sold  on  execu- 
tion,"' even  by  the  mortgagee,"*  but,  in  most  states,  not  under  an' 
execution  issuing  on  the  mortgage  debt.""  The  same  rules  apply 
to  equitable  mortgages. 


218 


ASSIGNMENT  OF  THE  MORTGAGE. 

127.  A  mortgag-ee  may  assign  his  interest,  or  part  of  it, 

on  the  following  conditions: 

(a)  It  must  be  by  deed. 

(b)  The  mortgage   debt  must  accompany  the  mortgage. 

(c)  The  assignee  takes  the  mortgage  subject  to  the  same 

equities    as   he    takes    the   mortgage   debt,  and  no 
other. 

128.  On  the  death  of  the  mortgagee  before  foreclosure,  his 

interest  goes  to  his  personal  representative. 

129.  Before  foreclosure  the  mortgagee's  interest  is  not  sub- 

ject to  attachment  or  sale  on  execution. 

The  mortgagee  may  assign  the  mortgage,^ ^*  and  so  may  his  ex 
ecutor  or  administrator.* ^^     An  assignment  must  be  by   deed, 


221 


«i*  Dunning  v.  Bank,  61  N.  Y.  497;  Fliess  v,  Buckley,  22  Hun  (N.  Y.)  551. 

216  Atkins  V.  Sawyer,  1  Pick.  (Mass.)  351;  Fitch  v.  Plnckard,  5  111.  69.  And 
Bee  Bernstein  v,  Humes,  71  Ala.  260. 

21C  Gushing  v.  Hurd,  4  Pick.  (Mass.)  253;  Seaman  v.  Has,  14  Colo.  536,  24 
Pac.  461. 

217  Young  V.  Ruth,  55  Mo.  515;  Goring's  Ex'x  v.  Shreve,  7  Dana  (Ky.)  64; 
Tice  V.  Annin,  2  Johns  Ch.  (N.  Y.)  125;  Washburn  v.  Goodwin,  17  Pick. 
(Mass.)  137.    Contra,  Cottingham  v.  Springer,  88  111.  90. 

218  Clinton  Nat.  Bank  v.  Manwarring,  39  Iowa,  281;  Turner  v.  Watkins, 
31  Ark.  429.  But  see  Gibson  v.  Hough,  60  Ga.  588;  Phinizy  v.  Clark,  62  Ga. 
623. 

219  A  mortgage  of  indemnity  cannot  be  assigned  until  the  mortgagee  has 
paid  the  debt.  Abbott  v.  Upton,  19  Pick.  (Mass.)  434;  Wallace  t.  Goodall,  18 
N.  H.  439;  Jones  v.  Bank,  29  Conn.  25.  Contra,  Carper  v.  Munger,  62  Ind. 
481;  Murray  v.  Porter.  26  Neb.  288,  41  N.  W.  1111. 

220  Ex  parte  Blair,  13  Mete.  (Mass.)  126;  Ladd  v.  Wlggin,  35  N.  H.  421; 
Grooker  v.  Jewell,  31  Me.  306. 

*2i  Warden  v.  Adams,  15  Mass.  233;  Torrey  v.  Deavitt,  53  Vt  331.  But 
«ee  Kinna  v.  Smith,  3  N.  J.  Eq.  14. 

REAL  PROP. — 14 


210  ESTATES    AS   TO    QUALITY MORTGAGES.  (Cll.    9 

and  an  assignment  indorsed  on  the  mortgage  deed  would  not  be 
operative  at  law.^*^^  An  assignee  of  the  mortgage  takes  the  mort- 
gagee's interest,***  and  he  can  foreclose  in  his  own  name.***  After 
an  assignment,  an  agreement  by  the  mortgagor  and  mortgagee  can- 
not affect  the  assignee's  rights,  provided  the  mortgagor  has  had 
notice  of  the  assignment**"^  There  may  be  an  assignment  of  part 
of  a  mortgage.***  If  the  mortgage  is  assigned  without  a  transfer 
of  the  mortgage  debt,  the  assignee  takes  only  the  legal  title.  He 
holds  as  a  trustee  for  the  protection  of  the  mortgage  debt,  when 
that  is  held  by  another  than  the  mortgagee.**^  But,  if  the  mort- 
gage debt  has  not  been  transferred  by  the  mortgagee,  some  courts 
hold  that  it  passes  to  the  assignee  by  the  transfer  of  the  mort- 
gage.*** 

An  assignment  of  the  mortgage  debt  carries  with  it  the  benefit 

222  Adams  v.  Parker,  12  Gray  (Mass.)  53.  A  mere  delivery  of  the  mort- 
gage deed,  unaccompanied  by  the  note  secured,  is  not  an  assignment  Bow- 
ers V.  Johnson,  49  N.  Y.  432;  Merritt  v.  Bartholicl£,  36  N.  Y.  44. 

228  Anderson  v.  Banli,  98  Mich.  543,  57  N.  W.  808;  Harrison  v.  Yerby  (Ala.) 
14  South.  S21;  Hunt  v.  Mortgage  Security  Co.,  92  Ga.  720,  19  S.  E.  27.  Cf. 
Gray  v.  Waldron,  101  Mich.  612,  60  N.  W.  288;  Geiger  v.  Peterson,  164  Pa. 
St.  352.  30  Atl.  262. 

224  Irish  V,  Sharp,  89  111.  261. 

22  6  Black  V.  Reno,  59  Fed.  917;  Whipple  v.  Fowler,  41  Neb.  675,  60  N.  W. 
15;  Parker  v.  Randolph,  5  S.  D.  549,  59  N.  W.  722.  And  see  Cutler  v.  Clem- 
entson,  67  Fed.  409. 

226  Union  Mut  Life  Ins.  Co.  v.  Slee,  123  111.  57,  12  N.  E.  543;  McSorley  v. 
Larissa,  100  Mass.  270;  Wyman  v.  Hooper,  2  Gray  (Mass.)  141.  So  part  of 
the  mortgage  debt  may  be  assigned,  and  with  it  all  of  the  mortgage.  Lang- 
don  V.  Keith,  9  Vt.  299.  In  several  states  where  notes  secured  by  a  mort- 
gage are  assigned  successively,  the  one  first  due  has  the  first  right  to  the 
mortgage  security.  Horn  v.  Bennett,  135  Ind.  158,  34  N.  E.  956;  Stanley  v. 
Beatty,  4  Ind.  134;  Grapengether  v.  Fejervary,  9  Iowa,  163;  Wood  v.  Trask, 
7  Wis.  566.  Contra,  Cullum  v.  Erwin,  4  Ala.  452;  State  Bank  v.  Mathews, 
45  Neb.  659,  63  N.  W.  930;  Bartlett  v.  Wade,  66  Vt.  629,  30  Atl.  4;  First  Nat. 
Bank  v.  Andrews,  7  Wash.  261,  34  Pac.  913. 

227  Bailey  v.  Gould,  Walk.  (Mich.)  478;  Merritt  v.  Bartholick,  36  N.  Y.  44; 
Aymar  v.  Bill,  5  Johns.  Ch.  (N.  Y.)  570;  Swan  v.  Yaple,  35  Iowa,  248;  Peters 
T.  Bridge  Co.,  5  Cal.  335;  Johnson  v.  Cornett,  29  Ind.  59;  Thayer  v.  Campbell, 
9  Mo.  280. 

22  8  Philips  V.  Bank,  18  Pa.  St.  394.  But  see  Fletcher  v.  Carpenter,  37  Mich. 
412.  And  cf.  Johnson  v.  Clarke  (N.  J.  Ch.)  28  AtL  558;  State  Bank  v.  Math- 
ews. 45  Neb.  659,  03  N,  W.  930. 


§§    127-129)  ASSIGNMENT    OF    THE    MORTGAGE.  211 

of  the  mortgage,"*  and,  when  a  debt  secured  by  a  trust  deed  is 
assigned,  the  tmstee  holds  for  the  benefit  of  the  assignee. ^'^  A 
mortgagee  may  set  up  an  after-acquired  title  against  his  assignee, 
unless  his  assignment  was  with  covenants  of  warranty."^  And  he 
may  show  that  his  assignment,  though  absolute  in  form,  was  for 
security  only.^^a  An  assignment  of  the  mortgage  carries  with  it 
all  other  securities  which  the  mortgagee  has  for  the  same  debt.^s 
An  assignment  raises  no  implied  warranty  as  to  the  solvency  of 
the  mortgagor,  but  it  does  create  a  warranty  that  the  mortgage 
debt  has  not  beeu  paid."*  An  assignee  of  a  mortgage  and  the 
note  which  it  secures  takes  the  mortgage  free  from  all  equities  of 
which  he  has  no  notice,  because  the  note  itself,  which  is  the  prin- 
cipal thing,  is  free  from  such  equities.""^  But  when  the  note  is 
overdue,  or  is  nonnegotiable,  the  mortgage  is  subject,  in  the  hands 
of  the  assignee,  to  all  the  equities  which  existed  between  the  orig- 
inal parties  before  notice  of  assignment  to  the  mortgagor," «  and 
the  rule  is  the  same  when  the  mortgage  is  given  without  a  mort- 
gage note.^'^ 

If  the  mortgagee  dies  before  foreclosure,  his  interest  goes  to  his. 

229  Larned  v.  Donovan,  31  Abb.  N.  O.  308,  29  N.  Y.  Supp.  825;  Jenkins  r, 
Wilkinson,  113  N.  C.  532,  18  S.  E.  696;  Gumbel  v.  Boyer,  46  La.  Ann.  762,  15 
South.  84;  Longfellow  v.  McGregor  (Minn.)  63  N.  W.  1032.  But  see  Fitcb 
V.  McDowell,  145  N.  Y.  498,  40  N.  E.  205. 

230  Thomas  v.  Linn  (W.  Va.)  20  S.  E.  878;  Clark  v.  Jones,  93  Tenn  639  27 
S.  W.  1009. 

281  Weed  Sewing  Mach.  Co,  v.  Emerson,  115  Mass.  554. 
882  Pond  V.  Eddy,  113  Mass.  149. 

233  Philips  V.  Bank,  18  Pa.  St.  394.  But  see  Smith  v.  Starr  4  Hun  fN  Y) 
123.  ■     *^ 

2  34  1  Jones,  Mortg.  (5th  Ed.)  §  831;  French  v.  Turner,  15  Ind.  59. 

235  Button  V.  Ives,  5  Mich.  515;  Jones  v.  Smith,  22  Mich.  360;' Taylor  v 
Page.  6  Allen  (Mass.)  86;  Kenicott  v.  Supervisors,  16  Wall.  452;  Preston  v' 
Case.  42  Iowa,  549;  Farmers'  Nat.  Bank  v.  Fletcher,  44  Iowa.  252;  Swett  y. 
Stark,  31  Fed.  858;  Barnum  v.  Phenix,  60  Mich.  388,  27  N.  W.  577;  Helmer 
V.  Kroliek,  36  Mich.  371;  Gould  v.  Marsh,  1  Hun  (N.  Y.)  566;  Lewis' v.  Kirk 
28  Kan.  497.    Contra,  Scott  v.  Magloughlin,  133  111.  33,  24  N.  E.  1030. 

236  McKenna  v.  Kirkwood,  50  Mich.  544,  15  N.  W.  898;  Fish  v  French  15 
Gray  (Mass.)  520;  Owen  v.  Evans,  134  N.  Y.  514,  31  N.  E.  999.  That  in  New 
York  he  takes  it  subject  also  to  latent  equities  in  favor  of  third  persons  seo 
Bush  V.  Lathrop,  22  N.  Y.  535. 

28T  Corbett  v.  Woodwaxd,  5  Sawy.  403,  Fed.  Cas.  No.  3,223. 


212  ESTATES    A3    TO    QUALITY MORTGAGES.  (Ch.   9 

persona/  representative, and  it  may  be  assigned  or  otherwise  disposed 
of  bj  the  latter  without  an  order  of  the  court."'  The  heirs  of  the 
mortgagee  cannot  sell  the  mortgage,  nor  can  they  foreclose  it.^'' 
Unless  the  mortgagee  has  acquired  the  mortgaged  premises  under 
a  strict  foreclosure,  or  has  bid  them  in  at  a  foreclosure  sale,  he  has 
no  interest  which  is  subject  to  attachment,  or  to  a  sale  on  execu- 
tion. The  same  is  time  of  a  beneficiary  under  a  deed  of  tnist.^*"* 
This  is  because  the  mortgage  is  a  mere  incident  to  the  mortgage 
debt.  The  creditor's  remedy  is  against  the  mortgage  debt,  which  is 
the  principal  thing. 

PRIORITY  OF  MORTGAGES  AND  OTHER  CO]SrVEYANCES. 

130.  No  subsequent  purchaser  or  incumbrancer  can  take 
priority  over  a  conveyance  of  -which  he  has  notice. 
Such  notice  may  be : 

(a)  Actual  t^p.  213). 

(b)  ImpUed  (p.  215). 

(c)  Constructive,  which  includes  notice: 

(1)  By  recitals  in  title  deeds  (p.  216). 

(2)  By  possession  (p.  216). 

(3)  By  lis  pendens  (p.  218). 

(4)  By  registration  (p.  218). 

The  priority  of  mortgages  and  other  conveyances  of  realty  de- 
pends  almost  entirely   on   the   doctrine   of  notice.^ *^     There  is   a 
maxim  of  equity,  that,  between  equal  equities,  priority  of  time  pre- 
vails; ***    but  in  dealing  with  conveyances  of  realty  the  question 
usually  is  whether  the  equities  are  equal,  and  they  are  not  if  the 
subsequent  purchaser  has  notice  of  the  prior  conveyance.     How- 
ass  Baldwin  v.  Hatchett,  56  Ala.  461;   Collamer  v.  Langdon,  29  Vt  32;   Doug- 
lass V.  Duriu,  51  Me.  121. 
23  8  Collamer  v.  Langdon,  29  Vt.  32;   Webster  v.  Calden,  56  Me.  204. 
2*0  Marsh  v.  Austin,  1  Allen  (Mass.)  235;    Jackson  v.  Willard,  4  Johns.  (N. 
Y.)  41;    Kickert  v.  Madeira,  1  Kawle  (Pa.)  325;    Nicholson  v.  Walker,  4  111. 
ApiJ.  404;    Scott  v.  Mewhirter,  49  Iowa,  487;  Buck  v.  Sanders,  1  Dana  (Ky.) 
1S7. 
241  See  Fetter,  Eq.  c.  5. 
2*2  Fetter,  Eq.  p.  36. 


§    130)  PRIORITY    OF    MORTGAGES    AND    OTHER    CONVEYANCES.  213 

ever,  a  purchaser  with  notice  may  acquire  a  good  title  from  one  who 
purchased  without  notice,  because  otherwise  the  latter's  free  right 
of  disposal  would  be  abridged.^"  On  the  other  hand,  a  purchaser 
without  notice  can  take  a  good  title  from  one  who  had  notice.'** 
The  question  of  priority  is  in  many  cases  affected  by  fraud  of  the 
prior  grantee;  as,  where  a  prior  mortgagee  conceals  the  existence 
of  his  mortgage  from  one  about  to  take  a  mortgage  on  the  same 
premises,**"  or,  on  inquiry  being  made,  states  that  nothing  is  due 
on  his  mortgage,  he  is  estopped  to  set  up  the  mortgage  against  the 
subsequent  mortgagee."*  But  a  mortgagor  is  not  bound  to  dis- 
close his  mortgage  if  it  is  on  record."^ 

Actnwl  Notice, 

Whenerer  a  subsequent  mortgagee  or  grantee  has  actual  notice  of 
a  prior  conveyance,  he  can  acquire  no  priority  over  such  convey- 
ance.''** Wlien  the  unrecorded  conveyance  has  actually  been  seen 
by,  or  read  before,  the  purchaser,  but  under  circumstances  where  he 
could  not  well  suspect  the  identity  of  the  land,  nor  remember  its  de- 
scription,— as  where  lots  are  sold  by  number  from  a  plat,  and  he 
comes  himself  to  buy  what  he  naturally  thinks  are  other  lots, — the 
purchaser  is  not  charged  with  notice.'*^     Actual  notice  does  not 

243  Alexander  v.  Pendleton,  8  Cranch,  462;  Boone  v.  Chiles,  10  Pet  177; 
Morse  v.  CJurtis,  140  Mass.  112,  2  N.  E.  929;  Boynton  v.  Rees,  8  Pick.  (Mass.) 
829;  Webster  v.  Van  Steenbergh,  4«  Barb.  (N.  Y.)  211;  Bracken  v.  Miller,  4 
Watts  &  S.  (Pa.)  102;  Day  v.  Clark,  25  Vt.  397;  Pringle  v.  Dunn,  37  Wis.  449. 
Contra,  Sims  v.  Hammond,  33  Iowa,  368.  But  see,  contra,  where  the  deed  is 
recorded  in  the  meantime.  Van  Rensselaer  v.  Clark,  17  Wend.  (N.  Y.)  25; 
Bayles  v.  Young,  51  111,  127.  But  one  who  has  taken  a  title,  with  notice,  and 
transferred  it,  cannot  acquire  a  good  title  by  subsequently  repurchasing  from 
one  who  had  no  notice.     Schutt  v.  Large,  6  Barb.  (N.  Y.)  373. 

244  Wood  V.  Mann,  1  Sumn.  506,  Fed.  Cas.  No.  17,951;  Choteau  v.  Jones,  11 
111.  300;  Trull  v.  Bigelow,  16  Mass.  406;  Somes  v.  Brewer,  2  Pick.  (Mass.) 
184;   Glidden  v.  Hunt,  24  Pick.  (Mass.)  221;   Fallass  v.  Pierce,  30  Wis.  443. 

24B  L'Amoureux  v.  Vandenburgh,  7  Paige  (N.  Y.)  316. 

«46  riatt  V.  Squire,  12  Mete.  (Mass.)  494;  Miller  v,  Bingham,  29  Vt.  82.  And 
Bee  Fay  v.  Valentine,  12  Pick.  (Mass.)  40;  Chester  v.  Greer,  5  Humph.  (Tenn.)  25. 

247  Brinckerhoff  v.  Lansing,  4  Johns.  Ch.  (N.  Y.)  65;  Paine  v.  French,  4 
Ohio,  318;   Palmer  v.  Palmer,  48  Vt.  69. 

248  Fetter,  Eq.  102.  And  see  Wallace  v.  McKenzie,  104  CaL  130,  37  Pac. 
659. 

248  Armstrong  v.  Abbott,  11  Colo.  220,  17  Pac.  517;  Vest  v.  Mlchle,  31  Grat 
(Va.)  149. 


214  ESTATES    A3    TO    QUAI.ITV MORTQAQES.  (Cll.  9 

necessitate  actual  knowledge.""  It  may  be  shown  by  circumstantial 
evidence.  \Miether  there  was  such  notice  depends  in  each  instance 
upon  the  facts  of  the  case.""  The  test  is  whether  the  circumstances 
were  such  as  to  cause  a  reasonably  prudent  man  to  make  inquiry.^"* 
Hut  the  notice  must  afford  sufficient  infonnation  to  make  a  reason- 
able intjuiry  on,  and  not  merely  to  i>ut  him  on  inquiry.*"'  For  in- 
stance, a  mere  rumor  is  not  notice.-"*  A  purchaser  who  is  put  on  in- 
quiry must  make  a  reasonable  investigation  of  the  title,*"*'  and  he 
cannot  rely  on  statements  of  his  grantor,  or  one  who  is  interested  in 
concealing  the  prior  incumbrance.* "^^  He  is  presumed  to  have  no- 
tice of  facts  which  due  inquiry  would  have  shown  him.*"*^  The 
burden  of  proof,  however,  is  on  the  one  who  seeks  to  establish  the 
existence  of  notice.* °*  Notice,  to  affect  a  subsequent  purchaser, 
must  be  received  before  the  transaction  is  completed  and  the  price 

2  60  Fetter,  Eq.  81.     See,  however,  Lamb  v.  Pierce,  113  Mass.  72. 

2B1  Lamb  v.  Pierce,  113  Mass.  72;  White  v.  Foster,  102  Mass.  375;  Sibley  v. 
LetHngwell,  8  Allen  (Mass.)  684;  Michigan  Mut  Life  Ins.  Co.  v.  Conant,  40 
Mich.  530;  Vest  v.  Michie,  31  Grat.  (Va.)  149;  Vaughn  v.  Tracy,  22  Mo.  415; 
Specli  V.  Kiggin,  40  Mo.  405. 

2  52  Fassett  v.  Smith,  23  N.  Y.  252;  Williamson  v.  Brown,  15  N.  Y.  354; 
Baker  v.  Bliss,  39  N.  Y.  70;  Maupin  v.  Emmons,  47  Mo.  304;  Wilcox  v.  Hill, 
11  Mich.  256;  Helms  v.  Chadboume,  45  Wis.  60;  Brinkman  v.  Jones,  44  Wis. 
498;  Heaton  v.  Prather,  84  111.  330;  Curtis  v.  Muudy,  3  Mete.  (Mass.)  405; 
Wilson  V.  Hunter,  30  lud.  466. 

263  Dey  V.  Dunham,  2  Johns.  Ch.  (N.  Y.)  182;  Jackson  v.  Van  Valkenburgh, 
8  Cow.  (N.  Y.)  260;  City  of  Chicago  v.  Witt,  75  111.  211;  Maul  v.  Rider,  59  Pa. 
St  167. 

254  parkhurst  v.  Hosford,  21  Fed.  827;  Pittman  v.  Sofley,  64  111.  155;  Otis 
T.  Spencer,  102  111.  622;  Buttrick  v.  Holden,  13  Mete.  (Mass.)  355;  Shepard  v. 
Shepard,  36  Mich.  173;  Appeal  of  Bugbee,  110  Pa.  St.  331,  1  Atl.  273;  Kerns 
V.  .Swope,  2  Watts  (Pa.)  75;    Lament  v.  Stimson,  5  Wis.  443. 

2 id  Schweiss  v.  Woodruff,  73  Mich.  473,  41  N.  W.  511;  Oliver  v.  Sanborn,  60 
Mich.  346,  27  N.  W.  527;  Cambridge  Valley  Bank  v.  Delano,  48  X.  Y.  326; 
Maul  V.  Rider,  59  Pa.  St  167;  Wilson  v.  Miller,  16  Iowa,  111.  But  if  Inquiry 
fails  to  disclose  the  prior  conveyance,  he  Is  protected.  Williamson  v.  Brown, 
15  N.  Y.  354. 

2  68  Blatchley  v.  Osbom,  33  Conn.  226;  Russell  v.  Petree,  10  B.  Mon.  (Ky.) 
184;    Littleton  v.  Glddings,  47  Tex.  109. 

2  87  Passumpsic  Sav.  Bank  v.  First  Nat  Bank,  53  Vt  82;  Austin  v.  Pulschen 
(Cal.)  39  Pac.  799.  Notice  of  an  unrecorded  deed  is  notice  of  all  its  contents. 
Martin  v.  Cauble,  72  Ind.  67;   Hill  v.  Murray,  56  Vt.  177. 

»58  Ryder  V.  Rush,  102  111.  338;   McCormIck  v.  Leonard,  38  Iowa,  272. 


§    ISO)         PRIORITY    OP    MORTGAGES    AND    OTHER    CONVEYANCES.  216 

paid.*"*  If  notice  is  received  after  part  of  the  money  has  been 
paid  over,  the  protection  extends  to  that  part,  but  not  to  money 
subsequently  paid."' 

Irnplzed  Notice. 

By  the  doctrine  of  implied  notice,  one  who  has  no  notice  himself 
is  presumed  to  have  notice  because  of  his  legal  relations  with  one 
who  has  notice.  This  arises  most  often  from  the  relation  of  prin- 
cipal and  agent,"^  which  includes  attorney  and  client."^*  One  who 
deals  with  real  property  through  an  agent  is  bound  by  any  notice 
which  may  come  to  the  agent  in  the  scope  of  his  emplo^-ment.''^' 
In  the  same  way,  a  cestui  que  trust  is  bound  by  notice  to  his  trus- 
tee.^^*  But  notice  to  a  husband  is  not  notice  to  his  wife.""  No- 
tice to  a  corporation  can  be  given  only  by  notice  to  an  ofiQcer  who 
has  the  matter  in  charge.  Notice  to  the  agent  of  a  corporation  is 
not  notice  to  the  corporation,  unless  it  touches  matters  in  the  line 
of  the  agent's  business."*  The  implication  of  notice  in  any  case 
may  be  rebutted  by  showing  facts  which  raise  a  presumption  that 
the  agent  did  not  communicate  his  knowledge  to  his  principal. 
This  is  the  case  where  the  agent  has  been  guilty  of  fraud,  or  where 
the  knowledge  comes  to  the  agent  in  another  transaction,  or  under 
such  circumstances  that  he  will  not  be  presumed  to  have  remem- 
bered it.*" 

259  Brown  v.  Welch,  18  111.  343;  Schultze  v.  Houfes,  96  111.  335;  Palmer  v. 
Williams,  24  Mich.  328;  Dixon  v.  Hill,  5  Mich.  404;  Everts  v.  Agnes,  4  Wis. 
843. 

260  Baldwin  v.  Sager,  70  111.  503;    Redden  v.  Miller,  95  HI.  836. 

261  Jackson  v.  Van  Valkenburgh,  8  Cow.  (N.  Y.)  260;  Bigley  v.  Jones,  114 
Pa.  St.  510,  7  Atl.  54;  Sowler  v.  Day,  58  Iowa,  252,  12  N.  W.  297.  But  see 
Reynolds  v.  Black  (Iowa)  58  N.  W.  922. 

262  May  V.  Le  Claire,  11  Wall.  217;  Josephthal  v.  Heyman,  2  Abb.  N.  O.  (N. 
T.)  22;    Walker  v.  Schreiber,  47  Iowa,  529. 

28  3  Hoppock  V.  Johnson,  14  Wis.  303;    Tucker  v.  Tllton,  55  N.  H.  223. 

264  Pope  V.  Pope,  40  Miss.  516. 

265  Prlngle  v.  Dunn,  37  Wis.  449;   Satterfleld  v.  Malone,  35  Fed.  445. 

266  Wilson  V.  McCullough,  23  Pa.  St.  440. 

26 T  Armstrong  v.  Abbott,  11  Colo.  220, 17  Pac.  517;  1  Jones,  Mortg.  (5th  Dd.) 
i  660. 


216  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.  9 

O/JVitructive  Notice — Becitals  in  Title  Deeds. 

Constructive  notice  is  notice  implied  by  operation  of  law,  and  can- 
not be  controverted  by  extraneous  evidence.*®'  One  who  takes  a 
conveyance  of  realty  is  bound  by  the  recitals  in  all  the  instruments 
in  his  chain  of  title,*'"  such  as  a  recital  in  a  deed  that  the  premises 
are  conveyed  subject  to  a  mortgage.  This  is  binding  on  a  subse- 
quent purchaser,  even  though  the  mortgage  is  not  recorded.*''*  And 
so  he  is  hound  by  notice  of  facts  of  which  he  is  put  on  inquiry  by 
recitals  in  his  title  deeds."^  And,  when  one  has  actual  notice  of 
an  unrecorded  conveyance,  he  is  bound  by  all  the  facts  of  which 
such  conveyance  is  notice.*^*  But,  when  a  reference  in  one  of 
the  deeds  making  up  the  chain  of  title  to  other  deeds  or  writings  is 
only  incidental  (for  instance,  if  it  is  in  a  part  of  the  deed  in  which 
other  lands  are  granted),  the  purchaser  is  not  bound  to  pursue  the 
inquiry;  and  he  has  no  actual,  and,  it  seems,  not  even  constructive, 
notice  of  the  matter  which  may  be  found  in  those  deeds.*^' 

Same — Possession. 

In  most  states  it  is  held  that  possession  by  one  not  the  owner 
of  record  is  notice  of  the  rights  of  the  occupant,*^*  as  when  one  is 

J8  8  Rogers  V.  Jones,  8  N.  H.  264. 

2«8  George  v.  Kent,  7  Allen  (Mass.)  16;  United  States  Mortg.  Co.  y.  Gross, 
93  111.  483;  Dean  v.  Long,  122  111.  447,  14  N.  B.  34;  Baker  v.  Mather.  25  Mich. 
51;  Cambridge  Valley  Bank  v.  Delano,  48  N.  Y.  326;  Parke  v.  Neeley,  90  Pa, 
St  52;  Kerr  v.  Kitchen,  17  Pa.  St.  433;  Dailey  v.  Kastell,  56  Wis.  444,  14  N. 
W.  635;   Clark  v.  Holland,  72  Iowa,  34,  33  N.  W.  350. 

«To  Kitchell  V.  Mudgett,  37  Mich.  81;  Baker  v.  Mather,  25  Mich.  51;  Garrett 
V.  Puckett,  15  Ind.  485. 

2T1  Cordova  v.  Hood,  17  Wall.  1;  Lytle  v.  Turner,  12  Lea  (Tenn.)  641. 

»72  Howard  Ins.  Co.  v.  Halsey,  8  N.  Y.  271;  Green  v.  Slayter,  4  Johns.  Oh. 
iS;   Bent  v.  Coleman,  89  lU.  364. 

2  73  See  Kansas  City  Land  Co.  v.  Hill,  87  Tenn.  589,  11  S.  W.  797. 

274  Phillips  V.  CosUey,  40  Ala.  486;  Byei-s  v.  Engles,  16  Ark.  543;  Smith  t. 
rule,  31  Cal.  180;  Massey  v.  Hubbard,  18  Fla.  688;  Sewell  v.  HoUand,  61  Ga. 
308;  Brainard  v.  Hudson,  103  111.  218;  Sutton  v.  Jervis,  31  Ind.  265;  Moore 
V.  Pierson,  6  Iowa,  279;  Lyons  v.  Bodenhamer,  7  Kan.  455;  Hackwith  v. 
Damron,  1  T.  B.  Mon.  (Ky.)  235,  Ringgold  v.  Brjan,  3  Md.  Ch.  488;  Allen  v. 
Cadwell,  55  Mich.  8,  20  N.  W.  692;  New  v.  Wheaton.  24  Minn.  406;  Vaughn 
f.  Tracy.  22  Mo.  415;  Phelan  v.  Brady,  110  N.  Y.  587,  23  N.  W.  1109;  Appeal  of 
Bugbee.  110  Pa.  SL  331.  1  AtL  273.  But  other  courts  hold  the  contrary. 
Harral  v.  Leverty,  50  Conn.  46;  Pomroy  v.  Stevens,  11  Mete.  (Mass.)  244* 
Brinkman  v.  Jones,  44  Wis.  49S. 


§    130)         PRIORITY    OF    MORTGAGES   AND   OTHER   CONVEYANCES.  217 

in  possession  as  vendee  under  an  executory  contract  to  purchase,'^* 
or  when  one  holds  as  lessee."'  And  most  cases  hold  that  posses- 
sion by  a  tenant  is  notice,  not  only  of  his  own  rights,  but  of  the  rights 
of  his  landlord  as  well."^  It  is  held  by  many  courts  that  posses- 
sion is  notice,  although  the  possession  is  not  actually  known  to 
the  subsequent  purchaser."*  But  possession  is  notice  only  during 
its  continuance,"®  and  it  must  be  visible,  notorious,  and  exclu- 
sive."" Possession  of  part  may  operate  as  notice  of  a  title  to  the 
whole  of  the  premises.^^i  In  order  that  possession  may  constitute 
notice,  it  must  be  inconsistent  with  the  title  on  which  the  pur-, 
chaser  relies. "^  Therefore  possession  by  a  grantor  is  not  notice 
to  a  subsequent  purchaser  of  any  right  reserved, ''^^  though  it  may  be 
notice  of  rights  subsequently  acquired."*  On  the  other  hand, 
long-continued  possession  by  the  grantor  is  held  to  be  notice  of  any 
right  claimed  by  him,""  as  where  he  holds  as  mortgagor  after  giving 
a  deed  absolute  in  form."^  Possession  by  the  mortgagor  or  his 
grantee  is  not  notice  of  an  unrecorded  release.*" 

«T6  Bank  of  Orleans  v.  Flagg,  3  Barb.  Ch.  (N.  Y.)  316. 

2T6  Kerr  v.  Day,  14  Pa.  St.  112. 

«7  7  u.  S.  v.  Sliney,  21  Fed.  894;  Ha  worth  v.  Taylor,  108  HI.  275;  Whitaker 
V.  Miller,  83  111.  381;  Hood  v.  Fahnestock,  1  Pa.  St.  470;  Dickey  v.  Lyon,  10 
Iowa,  544;  But  see  Beatie  v.  Butler,  21  Mo.  313;  Flagg  v.  Mann,  2  Sumn.  486, 
Fed.  Cas.  No.  4,847. 

278  Ranney  v.  Hardy,  43  Ohio  St.  157;  Hodge  v.  Amerman,  40  N.  J.  Eq.  99, 
2  Atl.  257;   Edwards  v.  Thompson,  71  N.  C.  177. 

270  Ehle  v.  Brown,  31  Wis.  405;   Meehan  v.  "Williams,  48  Pa.  St.  238. 

280  Morrison  v".  Kelly,  22  111.  610;  Bogue  v.  Williams,  48  111.  371;  Kendall 
V.  Lawrence,  22  Pick.  (Mass.)  540;  M'Mechan  v.  Griffing,  3  Pick.  (Mass.)  149; 
Webster  v.  Van  Steenbergh,  46  Barb.  (N.  Y.)  211;  Page  v.  Waring,  76  N.  Y. 
463;    Ely  V.  Wilcox,  20  Wis.  523;    Meehan  v.  WiUiams,  48  Pa,  St  238. 

281  Nolan  V.  Grant,  51  Iowa,  519,  1  N.  W.  709;  Watkins  v.  Edwards,  23  Tex. 
443. 

282  Staples  T.  Fenton,  5  Hun  (N.  Y.)  172;  Plumer  v.  Robertson,  6  Serg. 
&  R.  (Pa.)  177;    Smith  v.  Yule,  31  Cal.  180. 

28S  Newhall  v.  Pierce,  5  Pick.  (Mass.)  450;  Dawson  t.  Danbury  Bank,  1& 
Mich.  489;   Koon  v.  Tramel,  71  Iowa,  132,  32  N.  W.  243. 

2  84  1  Jones,  Mortg.  (5th  Ed.)  §  597. 

2  85  White  V.  White,  89  111.  460;  Ford  v.  Marcall,  107  111.  136;  Illinois  Cent. 
R.  Co.  V.  McCullough,  59  111.  166;  Hopkins  v.  Garrard,  7  B.  Men.  (Ky.)  312. 

288  New  V.  Wheaton,  24  Minn.  406. 

«87  Briggs  V.  Thompson,  86  Hun,  607,  33  N.  Y.  Supp.  765. 


218  ESTATES    AS    TO    QUALITY MORTQAQES.  (Ch.   9 

SaTTie — Lis  Pendens. 

By  the  doctrine  of  lis  pendens,^"  one  who  purchases  realty  from 
a  party  to  a  suit  which  involves  the  title  thereto  takes  it  subject 
to  the  rights  of  the  litigants,  as  they  may  be  determined  by  the  ac- 
tion; that  is,  the  pendency  of  the  suit  affecting  the  title  to  realty 
is  constructive  notice  to  purchasers  who  acquire  interests  in  tlie 
property  after  the  commencement  of  the  action.^"' 

SAME— REGISTRATION. 

131.  By  recording  instruments  ajffecting  real  property  in 
the  manner  provided  by  statute,  constructive  no- 
tice of  the  contents  of  such  instruments  is  given 
to  subsequent  purchasers  and  incumbrancers. 

In  all  states  there  are  statutes  which  make  it  possible  to  give 
constructive  notice  of  any  conveyance  affecting  realty  by  recording 
the  instrument  in  an  office  designated  by  the  statute.^^"  These 
statutes  wUl  be  treated  of  in  this  place  in  their  application  to  other 
kinds  of  instruments  besides  mortgages.  The  theory  of  the  reg- 
istry acts  is  that,  by  the  record  of  a  conveyance,  constructive  no- 
tice is  given  of  its  existence  and  pro\'isions,  because  every  one  can 
examine  the  record.  If  a  man  does  not  record  his  deed  or  mort- 
gage, he  is  negligent,  and  should  suffer,  rather  than  an  innocent 
purchaser.^®^  There  is  a  difference  between  the  effect  of  notice 
(actual  or  constructive),  and  that  of  recording,  upon  the  action  of 
a  subsequent  purchaser.  Wliile,  under  the  laws  of  many  states, 
such  a  purchaser  is  protected  against  a  prior,  unrecorded  convey- 

288  See  Fetter,  Eq.  p.  9a. 

2  89  Haven  v.  Adams,  8  Allen  (Mass.)  3G3;  Jackson  v.  Andrews,  7  Wend. 
(N.  Y.)  152;  Boiling  v.  Carter,  9  Ala,  921;  Blanchaid  v.  Ware,  37  Iowa,  305; 
Hersey  v.  Turbett,  27  Pa.  St.  418;  Youngman  v.  Railroad  Co.,  65  Pa.  St.  278; 
Edwards  v.  Banksmith,  35  Ga.  213;  Grant  v.  Bennett,  9G  111.  513;  Smith  v. 
Hodsdon,  78  Me.  180,  3  Atl.  276.  But  see  Newman  v.  Chapman,  2  Rand. 
<Va.)  93;  Douglass  v.  McCrackin,  52  Ga.  596;  M'Cutchen  v.  Miller,  31  Miss. 
65;  Wyatt  v.  Barwell,  19  Ves.  435. 

290  1  Stim.  Am.  St  Law,  art  161. 

291  In  some  states  a  mortgage  is  of  no  validity  unless  recorded  within  a 
certain  time.  1  Stim.  Am.  St  Law,  §  1615;  1  Jones,  Mortg.  (5th  Ed.)  §  45a 
And  see  Truman  v.  Weed,  14  C.  C.  A.  595,  67  Fed.  645. 


I    131)  REGISTRATION.  2l9 

ance  only  if  he  has  first  put  his  own  deed  on  record,  and  thus  the 
recording  of  the  first  deed  would  defeat  him,  though  he  has  laid 
out  his  money  and  received  his  deed,  it  is  otherwise  with  notice 
in  pais,  which  comes  too  late  when  the  price  or  consideration  has 
been  paid,  and  the  deed  delivered  to  the  later  purchaser. 

What  Inst/ruTnents  Recorded. 

The  registry  acts  generally  require  the  recording  of  all  instru- 
ments affecting  real  estate,  except  short  leases,  in  a  number  of 
states. '^^^^  The  laws  in  most  of  the  states  provide,  also,  for  the  re- 
cording of  plats  and  subdivisions,  for  the  double  purpose — First, 
of  enabling  the  grantor  and  others  in  subsequent  deeds  to  refer  in 
their  deeds  to  the  blocks  and  lots  of  the  plat  as  matters  of  public 
record;  secondly,  of  dedicating  to  the  public  the  streets,  wharves, 
alleys,  and  open  places  laid  dovni  on  the  plat.^^'  But  the  record  of 
an  instrument  which  is  not  required  by  the  statute  to  be  recorded 
does  not  give  notice  of  its  existence.^®*  Nor  are  purchasers  affect- 
ed by  the  registry  of  a  forged  deed.^®''  No  constructive  notice  is 
raised  by  the  record  of  an  instrument  defectively  executed,^" 
Though  it  would  be  otherwise  if  there  was  an  actual  examination 
of  the  record.^®''  However,  in  Illinois  and  Kansas  the  recording 
of  deeds  defectively  executed  is  notice  of  the  equities  arising  under 
them.^^^ 

As  previously  stated,  equitable  mortgages  come  within  the  pro- 
\isions  of  the  recording  acts,^*^  as  do  also  mortgages  affecting  lease- 

29  2  1  stim.  Am.  St  Law,  §  1624;  2  Dembitz,  Land  Tit.  948,  955. 
298  Satchell  v.  Doram,  4  Ohio  St.  542;    "Williams  v.   Smitli,  22  Wis.   598; 
Maywood  Co.  v.  Village  of  Maywood,  118  111.  65,  6  N.  E.  SG6. 

294  Moore  v.  Hunter,  6  111.  317;  Pringle  v.  Dirnn,  37  Wis.  449;  Parret  T. 
Shaubhut,  5  Minn.  323  (Gil.  258). 

295  Pry  T.  Pry,  109  111.  466. 

296  Heister's  Lessee  v.  Fortner,  2  Bin.  (Pa.)  40;  Graves  v.  Graves,  6  Gray 
(Mass.)  391;  Blood  v.  Blood,  23  Pick.  (Mass.)  80;  St.  Louis  Iron  &  Mach. 
Works  V.  Kimball,  53  IlL  App.  636;   Carter  v.   Champion,  8  Conn.  549. 

297  Bass  V.  Estill,  50  Miss.  300;  Pringle  v.  Dunn,  37  Wis.  449. 
298Moriison  v.  Brown,  83  111.  562;    Reed  v.  Kemp,  16  111.  445;    Gillespie  v. 

Keed,  8  McLean,  377,  Fed.  Cas.  No.  5,436;    Simpson  v.  Mundee,  3  Kan.  172; 
Brown  v.  Simpson,  4  Kan.  76.     And  see  Healey  v.  Worth,  35  Mich.  166. 

298  Hunt  V.  Johnson,  19  N.  Y.  279;  Parklst  v.  Alexander,  1  Johns.  Ch.  (N. 
Y.)  394;  Smith  v.  Neilson,  13  Lea  (Tenn.)  461;  Russell's  Appeal,  15  Pa,  St. 
B19. 


220  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9 

hold  estates.""*    Assignments  of  mortgages  are  to  be  recorded  the 
same  as  mortgages.'"^ 

Manner  of  Becording. 

To  entitle  a  mortgage  or  other  conveyance  to  be  admitted  to  rec- 
ord, the  requirements  of  the  statutes  as  to  execution  ^"^  and  deliv- 
ery must  be  complied  with.*"'  But  a  conveyance  may  be  recorded 
after  the  death  of  the  grantor,  if  made  effectual  by  delivery  before 
his  death.'"*  In  most  of  the  states  before  a  conveyance  can  be 
recorded  it  must  be  acknowledged  by  the  maker  before  an  officer 
designated  by  statute.^°°  A  conveyance  must  be  recorded  within 
the  county  where  the  land  is  situated.^  °'     A  power  of  attorney  to 

800  Although  leasehold  estates  are  treated  as  chattel  interests,  mortgages 
affecting  them  are  recorded  with  mortgages  of  real  property.  Berry  v.  In- 
surance Co.,  2  Johns.  Ch.  (N.  Y.)  603;  Breese  v.  Bange,  2  E.  D.  Smith  (N.  Y.) 
474;  Paine  v.  Mason,  7  Ohio  St  198.  Mortgages  of  growing  crops  and  of 
trees,  as  long  as  they  are  realty,  are  to  be  recorded  with  mortgages  of  real 
property.  Jones  v.  Chamberlin,  5  Ileisk.  (Tenn.)  210.  Powers  of  attorney 
are  sometimes  required  to  be  recorded.    1  Stim.  Am.  St.  Law,  §  1624  (10). 

801  See  1  Stim.  Am.  St.  Law,  §  1624;  Howard  v.  Shaw,  10  Wash.  151,  38 
Pac.  746;  Larned  v.  Donovan,  84  Uun,  533,  32  N.  Y.  Supp.  731;  Murphy  v. 
Barnard,  162  Mass.  72,  38  N.  E.  29;  Bowling  v.  Cook,  39  Iowa,  200;  Merrill 
V,  Luce  (S.  D.)  61  N.  W.  43;  Stein  v.  Sullivan^  31  N.  J.  Eq.  409;  Turpin  v. 
Ogle,  4  111.  App.  611.  But  see  James  v,  Morey,  2  Cow.  (N.  Y.)  246.  Question 
of  priority  of  assignments  of  the  same  mortgage  seldom  arises,  because  the 
mortgage  note  and  mortgage  are  usually  delivered  to  the  first  assignee.  1 
Jones,  Mortg,  (5th  Ed.)  §  483. 

802  As  to  description  of  the  propeiiy,  and  the  requirements  for  signing, 
sealing,  witnessing,  etc.,  see  post,  pp.  419,  426. 

803  Sigourney  v.  Larned,  10  Pick.  (Mass.)  72;  Galpin  v.  Abbott,  6  Mich.  17; 
Fryer  v.  Rockefeller,  63  N.  Y.  208;  Green  v.  Drinker,  7  Watts  &  S.  (Pa.)  440; 
McKean  &  Elk  Land  Imp.  Co.  v.  Mitchell,  35  Pa.  St  269;  Ely  v.  Wilcox,  20 
Wis.  551;    White  v.  Denman,  1  Ohio  St.  110. 

804  Gill  V.  Pinney's  Adm'r,  12  Ohio  St  38;    Haskell  v.  Bissell,  11  Conn.  174. 

805  1  stim.  Am.  St  Law,  §  1570. 

806  1  Stim.  Am.  St  Law,  §  1614;  Lewis  v.  Baird,  3  McLean,  56,  Fed.  Cas. 
No.  8.316;  St  John  v.  Conger,  4{»  111.  535;  Stewart  v.  McSweeney,  14  Wis. 
468.  In  New  Hampshire,  Rhode  Island,  and  Connecticut,  the  town  is  the 
unit  instead  of  the  county.  2  Dembitz,  Land  Tit  941.  Where  an  instrument 
affects  land  lying  in  two  or  more  counties,  it  must  be  recorded  in  each. 
Oberholtzer's  Appeal,  124  Pa.  St.  583,  17  Atl.  143,  144;  1  Stim,  Am.  St  Law, 
Si  1614,  1627.     But  see,  as  to  change  of  boundaries.     Koerper  v.  Railway 


§    131)  REGISTRATION.  221 

convey  land  may  be  recorded  in  any  county  in  which  the  grantor 
may  at  the  time  or  thereafter  have  land  to  convey  (unless  it  is  re- 
stricted to  particular  tracts);  that  is,  in  any  county  of  the  state. 
But  it  does  not  follow  that,  when  recorded  in  one  county,  it  wOl 
make  a  deed  as  to  land  in  another  county  recordable;  nor  will  it, 
at  least  in  some  states,  and  where  the  statute  does  not  expressly 
authorize  the  recording  of  such  instruments  in  every  county,  make 
a  deed  as  to  land  in  another  county  recordable,  or  even  prove  itself 
by  the  record.^"  The  notice  takes  effect  from  the  time  the  instru- 
ment is  filed  for  record,^"^  and  the  certificate  of  the  recording  of- 
ficer is  conclusive  as  to  the  time  of  such  filing.^""*  If  the  instrument 
is  erroneously  recorded,  it  is,  in  some  states,  notice  only  of  what 
appears  on  the  record.^  ^°  But  in  other  states  the  first  grantee, 
having  done  all  he  could  to  secure  a  proper  record,  is  not  made  to 
suffer  by  the  recording  officer's  mistake."^  ITie  officer  is  liable  for 
damages  suffered  by  the  one  or  the  other  through  negligence  in  re- 
cording.^ ^'^  He  may,  however,  correct  errors  in  the  record  at  any 
time,""  but  notice  of  the  instrument  as  corrected  begins  cmly  from 
the  time  such  corrections  are  made.*^* 

When  an  instrument  has  been  properly  recorded,  its  priority  is 
nowise  affected  by  a  destruction  of  the  records.*" 

Co.,  40  Minn.  132,  41  N.  W.  65G;    Milton  v.  Turner,  38  Tex.  81;    Garrison  v. 
Haydon,  1  J.  J.  Marsli.  (Ky.)  222. 
80  7  Muldrow  V.  Robison,  58  Mo.  831. 

808  Haworth  v.  Taylor,  108  III.  275;  Sinclair  v.  Slawson,  44  Mich.  123,  6  N. 
W.  207;  Mutual  Life  Ins.  Ck).  v.  Dake,  87  N.  Y.  257;  Broolfe's  Appeal,  64  Ta. 
St.  127;    Woodward  v.  Boro,  16  Lea  (Tenn.)  678. 

809  Tracy  v.  Jenlcs,  15  Pick.  (Mass.)  465;    Hatch  v.  Haskins,  17  Me.  391. 

810  Frost  V.  Beekman,  1  Johns.  Ch.  (N.  Y.)  288;  s.  c,  appeal,  18  Johns.  (N. 
Y.)  544;  Miller  v.  Bradford,  12  Iowa,  14;  Bi-ydon  v,  Campbell,  40  Md.  331. 
•Contra,  Mims  v.  Mims,  35  Ala.  23,  under  a  statute  making  conveyances  "op- 
erative as  a  record"  from  the  time  of  delivery  to  the  officer. 

311  Merreck  v.  Wallace,  19  111.  486;  Tousley  v.  Tousley,  5  Ohio  St  78.  And 
«ee  Sinclair  v.  Slawson,  44  Mich.  123,  6  N.  W.  207. 

812  1  Jones,  Mortg.  (5th  Ed.)  §  579. 

813  Sellers  v.  Sellers,  98  N.  C.  13,  3  S.  E.  917. 

814  Chamberlain  v.  Bell,  7  Cal.  292. 

81 B  Shannon  v.  Hall,  72  HI.  354;  Heaton  v,  Prather,  84  111.  330.  See  1 
Stim.  Am.  St  Law,  §  1620.  But  some  statutes  require  a  re-recording  within 
a  given  time.  ToUe  v.  Alley  (Ky.)  24  S.  W.  113.  And  see  Hyatt  v.  Cochran, 
69  Ind.  436. 


222  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9' 

In  a  few  states,  the  index  is  made  a  part  of  the  record,  so  that 
an  instrument  recorded,  but  not  indexed,  is  not  notice.*^'  In  others 
the  index  is  no  part  of  the  record.'^' 

Of  What  Facts  Record  is  Notice, 

When  an  instrument  is  properly  recorded,  it  is  constructive  no- 
tice of  everything  which  could  be  learned  by  an  actual  examination 
of  the  record.  Therefore  purchasers  are  bound  by  recitals  in  the 
recorded  deed,^^*  and  a  reference  to  a  prior,  unrecorded  instrument 
gives  notice  of  that  instrument.^ ^®  There  U  notice,  also,  of  any- 
thing as  to  which  the  record  would  put  one  on  inquiry.^ ^^ 

To    Wlwrri  Record  is  Notice. 

Most  of  the  recording  laws  provide  that  unrecorded  instru- 
ments shall  be  void  against  subsequent  purchasers  and  incumbran- 
cers without  notice,  and  for  value,  whose  deeds  or  mortgages  are 
recorded  first.*^^  The  effect  of  these  statutes  is  that  priority  of 
record  gives  priority  of  title,^^^  and,  when  both  instruments  are  un- 
recorded, priority  is  according  to  the  time  of  execution.^^^  In  a 
few  states  the  subsequent  conveyance  has  priority,  although  it  is 
not  first  recorded,^ ^*  and  in  some  states  actual  notice  of  a  deed  or 
mortgage  does  not  make  it  valid  against  subsequent  purchasers  un- 
less it  has  been  recorded.^ ^"^     In  several  states  the  statutes  provide 

S16  Barney  v.  McCaity,  15  Iowa,  510;  Lombard  v.  Culbertson,  59  Wis.  433, 
18  N.  W.  399.     But  see  Lane  v.  Duchac,  73  Wis.  64G,  41  N.  W.  9G2. 

317  Mutual  Life  Ins.  Co.  v.  Dake,  87  N.  Y.  257;  Curtis  v.  Lyman,  24  Vt.  338; 
Stockwell  V.  McHenry,  107  Pa.  St.  237;   Green  v.  Garrington,  16  Ohio  St  548. 

818  McPlierson  v.  Rollins,  107  N.  Y.  316,  14  N.  E.  411;  Dexter  v.  Hams,  2 
Mason,  531,  Fed.  Cas.  No.  3,862, 

819  White  V.  Foster,  102  Mass.  375. 

820  Heaton  v.  PnUher,  84  III.  330.  But  see  Interstate  Bldg.  &  Loan  Ass'n 
v.  McCartha,  43  S.  C.  72,  20  S.  E.  807.  Record  of  an  incumbrance  on  land 
given  prior  to  the  acquisition  of  the  title,  is  not  notice.  Calder  v.  Chapman, 
52  Pa.  St  859;    Oliphant  v.  Burns,  146  N.  Y.  218,  40  N.  E.  980. 

321  See  1  Stlm.  Am.  St  Law,  §  1611. 

822  Ely  V.  Wilcox,  20  Wis.  523;  Lacustrine  Fertilizer  Co.  v.  Lake  Guano 
&  Fertilizer  Co.,  82  N.  Y.  476;  Bun-ows  v.  Hovland,  40  Neb.  464,  58  N.  W. 
1)47. 

818  1  stim.  Am.  St  Law,  §  1611  A  (1). 

824  1  stim.  Am.  St  Law,  §  1611  A  (2). 

82B  Mayham  v.  Coombs,  14  Ohio,  428;  Doe  v.  Allsop,  5  Bam.  &  Aid.  142; 
Bostic  V.  Young,  116  N.  C.  766,  21  S.  E.  552;    Quinnerly  v.  Quinnerly,  114  N. 


\ 

§    131)  EEQISTRATION.  223 

that  a  conveyance  shall  be  constructive  notice  from  the  time  of  its 
execution,  if  it  is  recorded  within  a  certain  time.*'"  Such  a  provi- 
sion seems  most  pernicious,  and  certainly  is  productive  of  the  very 
frauds  which  registry  acts  are  designed  to  prevent." ^^  In  some,  at 
least,  of  these  states,  if  the  instrument  is  not  recorded  within  the 
time  allowed  by  the  statute,  it  is  then  notice  only  from  the  time  it 
is  actually  recorded.*^* 

The  record  of  an  instrument  is  notice  only  to  those  who  arc- 
bound  to  search  the  records.  Consequently  no  one  is  affected  with 
notice  who  does  not  claim  through  the  same  chain  of  title.^^®  Nor 
is  the  record  of  a  deed  of  any  effect  against  a  prior  grantee  whose 
deed  is  already  recorded.^^"  A  subsequent  conveyance  does  not 
become  effectual  by  record  against  a  prior  unrecorded  instrument, 
unless  the  subsequent  conveyance  was  for  value,  and  without  no- 
nce in  any  w^ay.^^*^  In  some  states  a  purchaser  by  a  quitclaim  deed 
is  held  to  take  subject  to  prior  unrecorded  instruments.^ '=^  But  in 
most  states  the  cases  hold  the  contrary.""     A  purchaser  from  an 

C.  145,  19  S.  E.  99.     To  the  contrary,  see  Blades  v.  Blades,  1  Eq.  Gas.  Abr. 
858,  pi.  12;    Stroud  v.  Lockart,  4  Dall.  153;    Britton's  Appeal,  45  Pa.  St.  172. 

32  0  1  stim.  Am.  St.  Law,  §  1615  B. 

82  7  See  Clarke  v.  White,  12  Pet.  178;  Phlfer  v.  Bamhart,  88  N.  C.  333. 

828  1  stIm.  Am.  St.  Law,  §  1615  B;  Northrup's  Lessee  v.  Brehmer,  8  Ohio, 
392;  Pollard  v.  Cocke,  19  Ala.  188;  Harding  v.  Allen,  70  Md.  395,  17  Atl.  377; 
Sanborn  v.  Adair,  29  N.  J.  Eq.  338;   Anderson  v.  Dugas,  29  Ga.  440. 

32  9  Webber  v.  Ramsey,  100  Mich.  58,  58  N.  W.  625;  Long  v.  Dollarhlde,  24 
Cal.  218;  Tilton  v.  Hunter,  24  Me.  29;  Crockett  v.  Maguire,  10  Mo.  34;  Losey 
V.  Simpson,  11  N.  J.  Eq.  246;  Rodgers  v.  Burchard,  34  Tex.  441;  Rankin  v. 
Miller,  43  Iowa,  11. 

380  George  v.  Wood,  9  Allen  (Mass.)  80;  Bell  v.  Fleming's  Ex'rs,  12  N.  J.  Eq. 
13. 

831  Adams  v.  Cuddy,  13  Pick.  (Mass.)  460;  Jackson  v.  Page,  4  Wend.  (N.  Y.) 
585;  Jackson  v.  Elston,  12  Johns.  (N.  Y.)  452;  Mills  v.  Smith,  8  W^all.  27; 
Goodenough  v.  Wan-en,  5  Sawy.  494,  Fed.  Gas.  No.  5,534. 

3  32  Marshall  v.  Roberts,  18  Minn.  405  (Gil.  365).  See,  also,  Fitzgerald  v. 
Libby,  142  Mass.  235,  7  N.  E.  917;  De  Veaux  v.  Fosbender,  57  Mich.  579,  24  N. 
W.  790. 

8  83  Dow  V.  Whitney,  147  Mass.  1,  16  N.  E.  722;  Doe  v.  Reed,  5  111.  117;  Pet- 
tingill  V.  Devin,  35  Iowa,  344;  Cutler  v.  James,  64  Wis.  173,  24  N.  W.  874; 
Willingham  v.  Hardin,  75  Mo.  429;  Graff  v.  Middleton,  43  CaL  341;  Johnson 
V.  Williams,  37  Kan.  179,  14  Pac.  537.    But  see  Stivers  v.  Home,  62  Mo.  473. 


224  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9 

heir  takes  land  free  from  the  unrecorded  conveyances  of  the  ances- 
tor, of  which  he  has  no  notice.^^* 

Unrecorded  deeds  and  mortgages  are,  of  course,  valid  against  the 
grantor  or  mortgagor,  his  heirs  and  devisees.^"'  And  they  are  valid 
also  against  his  assignee  in  bankruptcy,*^'  but  not  against  a  bona 
fide  purchaser  from  such  assignee.**^  A  mortgagee  and  a  trustee 
under  a  deed  of  trust  are  purchasers  within  the  meaning  of  the  re- 
cording laws.'*'  But  in  some  states  one  who  takes  a  mortgage  to 
secure  a  pre-existing  debt  is  not  a  purchaser,  and  tal^es  only  the 
mortgagor's  equitable  interest.**®  For  example,  in  these  states, 
if  the  mortgagor  had  made  a  valid  contract  for  the  sale  of  the  mort- 
gaged premises,  a  mortgage,  to  secure  a  pre-existing  debt,  though 
to  one  having  no  notice  of  the  contract,  would  create  a  lien  only  on 
the  part  of  the  purchase  price  still  unpaid.**" 

Mortgages  to  secure  future  advances  by  the  mortgagee  are  val- 
id,**^ and,  if  properly  recorded,  have  priority  over  subsequent  con- 
veyances and  incumbrances,  up  to  the  amount  expressed  in  the 

884  Earle  v.  Flske,  103  Mass.  491;  Powers  v.  McFerran,  2  Serg.  &  R.  (Pa.) 
44;  Kennedy  v.  Northup,  15  111.  148;  Vaughan  v.  Greer,  38  Tex.  530;  Young- 
blood  v.  Vastine,  ■id  Mo.  239;  McCulloch's  Lessee  v.  Endaly,  3  Yerg.  (Tenn.) 
346;  Hill  v.  Meeker,  24  Conn.  211.  Contra,  Harlan's  Heirs  v.  Seaton's  Heirs, 
18  B.  Men.  (Ky.)  312;  Hancock  v.  Beverly's  Heirs,  6  B.  Mon.  (Ky.)  531;  Rodg- 
ers  V.  Burchard,  34  Tex.  441. 

83B1  stim.  Am.  St.  Law,  §  1611  B;  Secard's  Lessee  v.  Davis,  6  Pet  124; 
Bums  V.  Berry,  42  Micli.  176,  3  N.  W.  924. 

886  Stewart  v.  Piatt,  101  U.  S.  731;    Mellon's  Appeal,  32  Pa.  St  121. 

887  Holbrook  v.  Dickenson,  56  111.  497.  As  to  who  are  bona  fide  purchasers, 
see  Fetter,  Eq.  95. 

838  Martin  v.  Jackson,  27  Pa.  St.  504;  Hulett  v.  Insurance  Co.,  114  Pa.  St. 
142,  6  All.  554;  Porter  v.  Greene,  4  Iowa,  571;  Kesner  v.  Trigg,  98  U.  S.  50; 
ShefTey  v.  Bank,  33  Fed.  315. 

8  89  Boxheimer  v.  Gunn,  24  Mich.  372.  But  he  Is  a  purchaser  if  he  releases 
some  valuable  right,  such  as  a  vendor's  lien,  Lane  v,  Logue,  12  Lea  (Tenn.) 
681;  or  gives  an  extension  of  time,  Koon  v.  Tramel,  71  Iowa,  132,  32  N.  W. 
243;   Gary  v.  White,  52  N.  Y.  138;   GilchrLst  v.  Gough,  63  Ind.  576. 

840  Young  V.  Guy,  87  N.  Y.  457. 

841  Campbell  v.  Freeman,  99  Cal.  546,  34  Pac.  113;  Merchants'  &  Farmers' 
Bank  v.  Hervey  Plow  Co.,  45  La.  Ann.  1214.  14  South.  139.  Cf.  Bowen  v.  Rat- 
cliff,  140  Ind.  393,  39  N.  E.  860.  But  see  Puller  v.  Griffith  (Iowa)  60  N.  W.  247; 
Savings  &  Loan  Soc.  v.  Burnett  (CaL)  37  Pac.  180. 


§131)  KEGISTBATION.  225 

mortgage.**'  The  mortgagee  is  a  purchaser  from  the  time  the  ad- 
vances are  made,  if  without  actual  notice  of  the  subsequent  con- 
veyance.^** If  one  who  has  a  mortgage  for  future  advances  ac- 
quires actual  notice  of  a  subsequent  mortgage,  he  is  not  protected 
as  to  advances  made  after  that  time,^**  unless,  by  the  terms  of  his 
contract  with  the  mortgagor,  he  is  bound  to  make  such  advances.**" 
The  recording  of  the  subsequent  mortgage  is  not,  however,  notice 
to  the  first  mortgagee.**' 

A  judgment  creditor  is  not  a  purchaser,  under  the  registry  acts,^*^ 
unless  the  statute  expressly  so  provides.***  When  there  is  no  such 
provision,  a  judgment,  as  against  a  prior  unrecorded  mortgage,  will 
bind  only  the  equity  of  redemption.**^  A  purchaser  at  an  execu- 
tion sale,  without  notice  of  a  prior  mortgage,  takes  the  land  free 
from  such  mortgage.*""  In  most  states  a  purchase-money  mort- 
gage *°^  takes  priority  over  aU  previous  conveyances  and  judgment 
liens.*"     But,  to  have  this  effect,  it  must  be  part  of  the  same  trans- 

8*2  Reynolds  v.  Webster,  71  Hun,  378,  24  N.  Y.  Supp.  1133;  Bank  of  Oroville 
y.  Lawrence  (Oal.)  37  Tac.  936. 

S43  Simons  v.  Bank,  93  N.  Y.  269. 

»**  Frye  v.  President,  etc.,  11  IlL  367;  Hall  v.  Grouse,  13  Hun  (N.  Y.)  557; 
Todd  V.  Outlaw,  79  N.  C.  235;  Savings  &  Loan  Soc.  v.  Burnett,  106  Cal.  514, 
89  Pac.  922. 

84  6  Brinkmeyer  v.  Helbling,  57  Ind.  435;   Moroney's  Appeal,  24  Pa.  St.  372. 

846  Nelson's  Heirs  v.  Boyce,  7  J.  J.  Marsh.  (Ky.)  401;  Bedford  v.  Backhouse, 
2  Eq.  Cas.  Abr.  615,  pL  12;   Morecock  v.  Dickins,  1  Amb.  678. 

847  Jackson  v.  Dubois,  4  Johns.  (N.  Y.)  216;  Cover  v.  Black,  1  Pa.  St.  493; 
Plxley  V.  Hugglns,  15  Cal.  128;  Bell  v.  Evans,  10  Iowa,  353;  Righter  v.  For- 
rester, 1  Bush  (Ky.)  278.  Contra,  Dutton  v.  McReynolds,  31  Minn.  66,  16  N. 
W.  468.    And  see  Van  Thorniley  v.  Peters,  26  Ohio  St.  471. 

348  1  stim.  Am.  St.  Law,  §  1611  A  (2).  Where  a  mistake  in  omitting  property 
from  a  mortgage  is  reformed,  the  lien  of  a  mortgage  on  the  omitted  property 
Is  superior  to  that  of  a  judgment  obtained  after  the  execution  of  the  mortgage, 
and  before  its  reformation.    Phillips  v.  Roquemore,  96  Ga.  719,  23  S.  E.  855. 

849  And  the  rule  is  the  same  when  the  judgment  is  against  an  heir  to  whom 
the  land  has  descended.    Voorhis  v.  Westei-velt,  43  N.  J.  Eq.  642,  12  Atl.  533. 

860  McFadden  v.  Worthington,  45  111.  362;  Jackson  v.  Chamberlain,  8  Wend. 
(N.  Y.)  620;  Morrison  v.  Funk,  23  Pa.  St.  421;  Ehle  v.  Brown,  31  Wis.  405. 
But  see,  for  some  limitations  on  this  rule,  a  full  discussion  of  creditora'  rights 
under  the  registry  laws  in  2  Dembitz,  Land  Tit  992. 

881  See  ante,  p.  85. 

858  By  statute  In  some  states,  1  Stim.  Am.  St  Law,  §  1864;  and  without  stat- 
nte  in  others,  Roane  v.  Baker,  120  lU.  308,  11  N.  E.  246;  Curtis  v.  Root  20  IlL 

REAL  FRCP. — 15 


226  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.  9 

action  as  the  deed  of  conveyance."'  Such  a  mortgage  mnst  be  re^ 
corded,  the  same  as  any  other,  in  order  to  have  priority  over  subse- 
quent conveyances.  A  mortgagee  under  an  absolute  deed,  with  p 
separate  defeasance,  is  protected  by  the  record  of  the  deed,  without 
a  record  of  the  defeasance.^ '^*  An  assignee  of  a  mortgage  is  pro- 
tected as  a  purchaser.""  The  record  of  the  assignment  of  a  mort- 
gage is  not  constructive  notice  to  the  mortgagor,  and  payments 
made  by  him  to  the  mortgagee,  without  actual  notice,  are  protect- 
ed."' It  is  otherwise  when  the  mortgage  is  to  secure  a  negotiable 
note."^  And  the  record  of  an  assignment  of  a  mortgage  is  notice 
to  subsequent  purchasers  of  the  equity  of  redemption."* 

When  the  mortgagee  has  assigned  the  mortgage,  and  then  wrong- 
fully discharges  it  of  record,  the  cases  are  conflicting  as  to  whether 
subsequent  purchasers  from  the  mortgagor  are  protected  against 
the  assignee  of  the  mortgage."'     But  they  are  in  states  where  the 

54;  Phelps  v.  Fockler,  61  Iowa,  340,  14  N.  W.  729,  16  N.  W.  210;  Rogers  v. 
Tucker,  94  Mo.  846,  7  S.  W.  414.  Such  mortgage  may  be  to  a  third  person  who 
advances  the  purchase  money.  Jackson  y.  Austin,  15  Johns.  (N.  Y.)  477;  Laid- 
ley  V.  Aiken,  80  Iowa,  112,  45  N.  W.  384;  Jones  v.  Tainter,  15  Minn,  512  (Gil. 
423).  But  see  Stansell  v.  Roberts,  13  Ohio,  149;  Heuisler  v.  Nickum,  38  Md. 
270. 

8  58  Foster's  Appeal,  3  Pa.  St  79;  Cake's  Appeal,  23  Pa.  St  186;  Banning  v. 
Edes,  6  Minn.  402  (GU.  270). 

8B4  Short  V.  Caldwell,  155  Mass.  57,  28  N.  B.  1124;  Jackson  v.  Ford,  40  Me. 
881.  But  In  some  states,  by  statute,  the  defeasance  must  be  recorded,  or  the 
mortgagee  takes  no  Interest  under  the  mortgage.  1  Stlm.  Am.  St  Law,  § 
1860  A. 

8B8  Bank  of  Ukiah  v.  Petaluma  Sav.  Bank,  100  CaJ.  590,  35  Pac.  170. 

888  Foster  v.  Carson,  159  Pa.  St.  477,  28  Atl.  356;  Ely  v.  Scofield,  35  Barb. 
(N.  Y.)  330;  Hubbard  v.  Turner,  2  McLean,  519,  Fed.  Cas.  No.  6,819.  It  is  so 
by  statute  in  some  states.  1  Stim.  Am.  St.,  Law,  §  1870;  1  Jones,  Mortg.  (5th 
Ed.)  §  4S0. 

887  Murphy  v.  Barnard,  162  Mass.  72,  38  N.  E.  29;  Mulcahy  v.  Fenwick,  161 
Mass.  164,  36  N.  E.  689;  Biggerstaff  v.  Mai-ston,  161  Mass.  101,  36  N.  E.  785; 
Baumgartner  v.  Peterson  (Iowa)  62  N.  W.  27;  Eggert  v.  Beyer,  43  Neb.  711, 
62  N.  W.  57;  Stark  v.  Olsen,  44  Neb.  646,  63  N.  W.  37.  But  see  Vann  v.  Mar- 
bury,  100  Ala.  438,  14  South.  273. 

8  88  Brewster  v.  Games,  103  N.  Y.  556,  9  N.  E.  323;  Eggert  v.  Beyer,  43  Neb. 
711.  62  N.  W.  57. 

8  89  The  weight  of  authority  holds  that  they  are.  Ogle  v.  Turpln,  102  IlL 
148;   Lewis  v.  Kirk,  28  Kan.  497.     But  see,  contra,  Lee  v.  Clark,  89  Mo.  553, 


§§    133-134)       DISCHARGE    OF    A    MORTGAGE PERFORMANCE.  2?i7 

assignment  of  a  mortgage  must  be  recorded."^"  And  such  a  dis- 
charge is  not  good,  in  favor  of  one  who  took  his  interest  before  tb? 
discharge  was  entered  of  record.'"^  When  the  holder  of  the  mort- 
gage is  dead,  payment  must  be  made  to  his  personal  representative, 
who  is  the  proper  one  to  enter  satisfaction."' 


DISCHARGE  OF  A  MORTGAGB. 

132.  A  mortgage  may  be  discharged: 

(a)  By  performance  (p.  227). 

(b)  By  merger  (p.  231). 

(c)  By  redemption  (p.  233). 

S  A.ME— PERFORM  ANCE. 

133.  Performance   of  the  condition  in  the  defeasance  dis- 

charges a  mortgage.     Performance  may  be: 

(1)  On  the  day  named  in  the  defeasance. 

(2)  Before  the  day  named,  if  accepted  by  the  mortgagee. 

(3)  After  the  day  named,  if  accepted  by  the  mortgagee. 

134.  Tender  of  performance  by  one   entitled  to  perform 

will  discharge  the  mortgage. 

P&rformcmce  or  Payment. 

A  mortgage  being  an  estate  on  condition  subsequent,  the  mort- 
gagee's estate  is  defeated  by  the  performance  of  the  condition  nam- 
ed in  the  defeasance.  Performance  usually  requires  the  payment  of 
money,  but  the  condition  may  require  other  acts  as  the  support  of  the 
mortgage.    Payment  *'*  at  the  time  mentioned  in  the  defeasance  dis- 

1  S.  W.  142;  Bamberger  v.  Geiser,  24  Or.  203,  33  Pac.  609.  And  cf.  Roberts 
T.  Halstead,  9  Pa.  St.  32. 

860  Ferguson  v.  Glassford,  68  Mich.  36,  35  N.  W.  820;  Girardln  v.  Lampe, 
58  Wis.  267,  16  N.  W.  614;  Van  Keuren  v.  Corkins,  66  N.  Y.  77;  Bacon  v.  Van 
Schoonhoven,  87  N.  Y.  416;  Connecticut  Mut.  Life  Ins.  Co.  v,  Talbot,  113  Ind. 
373,  14  N.  B.  586. 

sei  Crumlish  v.  Railroad  Co.,  32  W.  Va.  244,  9  S.  E.  180. 

8  62  Crawford  v.  Simon,  159  Pa.  St.  585,  28  Atl.  491;  Woodruff  v.  Mutschler, 
34  N.  J.  Eq.  33. 

sea  For  payment  as  a  discharge,  see  Clark,  Cont,  p.  629. 


228  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9 

charges  the  mortgage;  ''*  that  is,  the  mortgagor  defeats  the  mort- 
gagee's estate  on  condition  by  performance  of  the  condition,  and 
the  title  to  the  mortgaged  premises  revests  in  the  mortgagor  with- 
out a  reconveyance.^®''  Payment  before  the  day  on  which  the  debt 
falls  due  cannot  be  enforced  by  either  party,^®'  but,  if  the  mortgagee 
accepts  such  payment,  it  will  operate  as  a  discharge  of  the  mort- 
gage.^ ®^  Payment  after  the  day  mentioned  in  the  condition — that 
is,  after  the  breach  of  condition — does  not  divest  the  estate  of  the 
mortgagee,  and,  if  the  mortgagee  will  not  reconvey  voluntarily,  the 
mortgagor  must  resort  to  equity  to  secure  a  reconveyance.^®*  But, 
in  those  states  where  the  lien  theory  prevails,  if  the  mortgagee  ac 
cept  payment  after  breach  of  condition,  he  is  held  to  waive  breach 
of  performance,  and  the  title  revests  in  the  mortgagor  without  a  re- 
conveyance.^®* A  discharge  of  the  mortgage  debt  discharges  the 
mortgage,*'^"  but  a  discharge  by  bankruptcy,  or  by  the  statute  of 
limitations,  does  not.^^^ 

^Tien  the  mortgagor  is  holder  of  the  mortgage  as  administrator 
of  the  mortgagee,  he  may  discharge  the  mortgage  at  any  time  by 

864  McCarn  v.  Wilcox  (Mich.)  63  N.  W.  978;  Gage  v.  McDermid,  150  111. 
598,  37  N.  E.  102G;  Kingsley  v.  Purdom,  53  Kan.  56,  35  Pac.  811.  Cf.  Greensburg 
Fuel  Co.  V.  Irwin  Nat.  Gas  Co.,  1G2  Pa.  St.  78,  29  Atl.  274;  Bartlett  v.  Wade, 
66  Vt.  629,  30  Atl.  4.  But  see  Sturges  v.  Hart,  84  Hun,  409,  32  N.  Y.  Supp. 
422;  Herber  v.  Thompson,  47  La.  Ann.  800,  17  South.  318.  As  to  application 
of  payments,  see  Clarli,  Cont.  p.  634;   Fetter,  Eq.  p.  249. 

88  5  Holman  v.  Bailey,  3  Mete.  (Mass.)  55;  Grain  v.  JMcGoon,  86  111.  431.  So, 
in  a  mortgage  for  support,  if  the  condition  is  pex'formed  up  to  the  death  of 
the  mortgagee  the  title  revests  in  the  mortgagor.  Munson  v.  Munson,  30 
Conn.  425. 

386  Weldon  v.  Tollman.  15  C.  C.  A.  138,  67  Fed.  986;  Bo  wen  v.  Julius,  141 
Ind.  310,  40  N.  E.  700;   Moore  v.  Klme,  43  Neb.  517,  61  N.  W.  736. 

8  67  1  Jones,  Mortg.  (5th  Ed.)  §  888. 

888  Currier  v.  Gale,  9  Allen  (Mass.)  522;   Doton  v.  Russell,  17  Conn.  146. 

889  Caruthers  v.  Humphrey,  12  Mich.  270;  McNair  v.  Picotte,  33  Mo.  57; 
Kortrlght  v.  Cady,  21  N.  Y.  343;  Shields  v.  Lozear,  S4  N,  J.  Law,  496. 

87  0  Sherman  v.  Sherman,  3  Ind.  337;  Shields  v.  Lozear,  34  N.  J.  Law,  496. 

871  Chamberlain  v.  Meeder,  16  N.  H.  381;  Bush  v.  Cooper,  26  Miss.  599. 
Foreclosure  Is  not  payment,  and  does  not  discharge  the  mortgage  debt.  See 
post,  p.  241.  But  the  parties  may  agree  that  It  shall  constitute  a  discharge. 
Shepherd  v.  May,  115  U.  S.  505,  6  Sup.  Ct  119;  Renwicli  v.  Wheeler,  48  Fed. 
431;  Vansant  v.  Allmon,  23  111.  30;  Germania  Bldg.  Ass'n  v.  Neill,  93  Pa, 
Et  322. 


§§    133-134)       DISCHARGE    OP    A    MORTGAGE PERFORMANCE.  229 

charging  the  amount  thereof  to  himself  on  his  probate  account,*'' ■ 
and  a  subsequent  assignment  would  transfer  no  title  to  the  as 
signee.'^'  A  change  in  the  form  of  a  mortgage  debt,  such  as  the 
substitution  of  a  new  note  in  the  place  of  the  original  note,  does 
not  effect  a  discharge.'^*  Nor  does  the  merger  of  the  mortgage 
note  in  a  judgment  produce  that  result.^^"*'  So  there  is  no  discliarge 
by  taking  further  security  for  the  mortgage  debt.»^*  Extending  the 
time  of  payment  does  not  discharge  the  mortgage  as  to  subsequent 
mortgagees.*''^  But  it  is  otherwise  where  the  mortgage  is  to  secure 
the  debt  of  another,  unless  the  mortgagor  consents  to  the  exten- 
sion.*^* A  release  of  part  of  the  mortgaged  premises  does  not  dis- 
charge the  mortgage  as  to  the  other  parts,*'"  unless  it  would  in- 
juriously affect  subsequent  mortgages,  of  which  the  first  mortgagee 
had  notice.*®"  On  the  other  hand,  the  personal  liability  of  the 
mortgagor  may  be  released  without  discharging  the  mortgage,  if 
there  is  no  intention  to  discharge  the  debt.**^  After  a  mortgage 
has  been  discharged,  it  cannot  be  revived  so  as  to  take  precedence 
over  intervening  incumbrances;**'    that  is,  the  mortgage  cannot 

872  Martin  r.  Smith,  124  Mass,  111.  But  see  Soverhill  v.  Suydam,  59  N.  Y. 
140;  Kinney  v.  Ensign,  18  Picli.  (Mass.)  232;  Crow  v.  Conant,  90  Mich.  247,, 
51  N.  W.  450. 

87  3  Ipswich  Manuf  g  Co.  v.  Story,  5  Mete.  (Mass.)  310. 

8  7*  Flower  v.  Elwood,  66  111.  438;  Watliins  v.  Hill,  8  Pick.  (Mass.)  522,'  Wil- 
liams V.  Starr,  5  Wis.  534;  Gregory  v.  Thomas,  20  Wend.  (N.  Y.)  17;  Geib 
V.  Reynolds,  35  Minn.  321,  28  N.  W.  923;  Swan  v.  Yaple,  35  Iowa,  248;  Wal- 
ters V.  ^Valters,  73  Ind.  425. 

876  Priest  V.  Wheelocli,  58  111.  114;  Torrey  v.  Cook,  116  Mass.  163;  Ely  v. 
Ely,  6  Gray  (Mass.)  439;   Morrison  v.  Morrison,  38  Iowa,  73. 

876  Gregory  v.  Thomas,  20  Wend.  (N.  Y.)  17;  Flower  v.  Elwood,  66  111.  438;: 
Clssna  T.  Haines,  18  Ind.  490;  Hutchinson  v.  Swartsweller,  31  N.  J.  Eq.  205. 

87  7  Bank  of  Utica  v.  Finch,  3  Barb.  Ch.  (N.  Y.)  293;  Whittacre  v.  Fuller,  5 
Minn.  508  (Gil.  401);  Cleveland  v.  Martin,  2  Head  (Tenn.)  128;  Naltner  v. 
Tappey,  55  Ind.  107. 

878  Smith  V.  Townsend,  25  N.  Y.  479;  Metz  v.  Todd,  36  Mich.  473;  Christner 
V.  Brown,  16  Iowa,  130. 

879  Patty  V.  Pease,  8  Paige  (N.  Y.)  277. 
8  80  Stewart  v.  McMahan,  94  Ind.  389. 

881  Hayden  v.  Smith,  12  Mete.  (Mass.)  511;  Donnelly  v.  Simonton,  13  Mlnn. 
801  (Gil.  278);    Walls  v.  Baird,  91  Ind.  429. 

8«2Bogert  V.  Striker,  11  Misc.  Rep.  88,  32  N.  Y.  Supp.  815;  Mitchell  t^ 
Coombs,  96  Pa.  St  430;    Lindsay  v.  Garvin,  31  S.  C.  259,  9  S.  B.  862. 


230  ESTATES    AS   TO    QUALITY MORTGAGES.  (Ch.    9 

be  continued  as  security  for  another  debt,  to  the  detriment  of 
subsequent  creditors  or  purchasers."*'  But  when  the  discharge  of 
a  mortgage  has  been  obtained  by  fraud  or  mistake,  it  may  be  set 
aside  unless  third  persons,  without  notice,  whose  rights  have  inter- 
vened since  the  discharge,  would  be  injuriously  affected.'** 

Tender. 

Whenever  payment  would  discharge  a  mortgage,  tender  of  pay- 
ment ""  will  have  the  same  effect'"  To  have  this  effect,  however, 
tender  must  be  absolute  and  unconditional,"^  and  it  must  be  for 
the  whole  amount  of  the  mortgage  debt.'"  Tender  of  the  wholt^ 
amount  is  required,  though  the  mortgagee  has  received  rents  and 
profits  for  which  there  has  been  no  accounting."*  Tender  will  be 
effectual  only  when  made  by  one  entitled  to  make  payment,  such 
as  the  mortgagor,'^"  a  grantee  who  has  assumed  the  mortgage,"^ 
or  a  junior  mortgagee."'  Payment  or  tender,  to  operate  as  a 
discharge,  must  be  to  one  authorized  to  receive  payment,  and  hav- 
ing a  right  to  enter  satisfaction.'"     If  the  mortgage  has  been  assign- 

8  88  Marvin  v.  Vedder,  5  Cow.  (N.  Y.)  671;  Bogert  v.  Bliss,  13  Misc.  Rep,  72, 
84  N.  Y.  Supp.  147;  Carlton  v.  Jackson,  121  Mass.  592;  Blalie  v.  Broughton, 
107  N.  C.  220,  12  S.  E.  127, 

8  84Willcox  V.  Foster,  132  Mass.  320;  Grimes  v.  Kimball,  3  Allen  (Mass.) 
518;  Weir  v.  Mosher,  19  Wis.  311;  West's  Appeal,  88  Pa.  St.  341;  Henscliel  v. 
Mamero,  120  111.  6G0,  12  N.  E.  203;  Ferguson  v.  Glassford,  68  Mich.  36,  35  N. 
W.  820;  Kern  v.  A.  P.  Hotaling  (Or.)  40  Pac.  168.  Cf.  Cambreleng  v. 
Graham,  84  Hun,  550,  32  N.  Y.  Supp.  843. 

886  As  to  what  constitutes  tender,  see  Clark,  Cont.  p.  639. 

886  Maynard  v.  Hunt,  5  Pick.  (Mass.)  240;  Willard  v.  Harvey,  5  N.  H.  252; 
Schoarff  v.  Dodge,  33  Ark.  340.  But  that  tender  only  stops  Interest,  see 
Parker  v.  Beasley,  116  N.  O.  1,  21  S.  E.  955. 

8  87  Potts  V.  Plaisted,  80  Mich.  149;  Engle  v.  Hall,  45  Mich.  57,  7  N.  W.  239; 
Roosevelt  v.  Bank,  45  Barb.  (N.  Y.)  579. 

8  88  Graham  v.  Linden,  50  N.  Y.  547;  Sager  v.  Tupper,  35  Mich.  134;  Cupples 
V.  Galligan,  6  Mo,  App.  62. 

8  89  Bailey  v.  Metcalf,  6  N.  H.  156. 

890  Blim  V.  Wilson,  5  Phila.  (Pa.)  78. 

891  Harris  v.  Jex,  66  Barb.  (N.  Y.)  232. 

8B2  Frost  v.  Bank,  70  N,  Y.  553;   Sayer  v.  Tupper,  35  Mich.  134. 

893  Grussy  v.  Schneider,  50  How.  Prac.  (N.  Y.)  134;  Dorkray  v.  Noble,  8  Me. 
278;  U.  S.  Bank  v.  Burson,  90  Iowa,  191,  57  N.  W.  705;  Lawson  v.  Nicholson 
(N.  J.  Err.  &  App.)  31  AtL  386;  Mulford  v.  Brown  (N.  J.  Ch.)  28  Atl.  513. 


§    135)  DISCHARGE   OF    A    MORTGAQK MERGBB.  231 

ed,  payment  or  tender  is  to  be  made  to  the  assignee,  if  the  mortgagor 
has  notice  of  the  assignment"* 

SAME— MEBGEB. 

185.  A  mortgage  is  discharged  by  merger  whenever  the 
mortgage  and  the  equity  of  redemption  are  owned 
by  the  same  person  in  the  same  right,  except: 

EXCEPTIONS— (a)  When  there  is  an  intervening  right 
in  a  third  person. 

(b)  When  there  is  an  intention  of  the  parties  to  the  con- 
trary, unless  preventing  a  merger  would  injure 
some  third  person. 

The  general  doctrine  of  merger  has  already  been  explained,  and 
examples  of  it  noticed  in  connection  with  several  different  estates. 
Merger  generally  takes  place  whenever  the  mortgage  and  the  eq- 
uity of  redemption  come  into  the  same  hands.* '•°  But  it  does  not 
occur  when  the  owner  has  an  interest  in  keeping  the  mortgage 
alive,"^  as  where  the  owner  of  the  equity  of  redemption  is  not  the 
original  mortgagor,  and  has  not  assumed  the  mortgage  debt.'" 
Nor  is  there  any  merger  when  there  is  an  intervening  right  between 
the  mortgage  and  the  equity  of  redemption.*"*     For  example,  when 

894  Kennedy  v.  Moore  (Iowa)  58  N.  W.  1066;  Dorkray  v.  Noble,  8  Me.  278. 
And  see  Hetzell  v.  Barber,  6  Hun  (N.  Y.)  534. 

89  6  Gibson  v.  Crehore,  3  Pick.  (Mass.)  475;  Ann  Arbor  Sav.  Bank  v.  Webb, 
56  Mich.  377,  23  N.  W.  51;  Judd  v.  Seekins,  62  N.  Y.  266;  McGale  v.  McGale 
(R.  I.)  29  AtL  967.  But  see  Burt  v.  Gamble,  98  Mich.  402,  57  N.  W.  261;  Cook 
V.  Foster,  98  Mich.  610,  55  N.  W.  1019. 

896  Edgerton  v.  Young,  43  111.  464;  Richardson  v.  Hockenhall,  85  111.  124; 
Tuttle  V.  Brown,  14  Pick.  (Mass.)  514;  Snyder  v.  Snyder,  6  Mich.  470;  Spencer 
V.  Ayrault,  10  N.  Y.  202;  Duncan  v.  Drury,  9  Pa.  St  832;  Davis  v.  Pierce,  10 
Minn.  376  (Gil.  302);  McCrory  v.  Little,  136  Ina.  86,  35  N.  B.  836;  White  v. 
Hampton,  13  Iowa,  259;   Lyon  v.  Mcllvaine,  24  Iowa,  9. 

89T  Grover  v.  Thatcher,  4  Gray  (Mass.)  526;  Evans  v.  Kimball,  1  Allen 
(Mass.)  240.  But  see  Byington  v.  Fountain,  61  Iowa,  512,  14  N.  W.  220,  and 
16  N.  W.  534. 

3  98  Grover  v.  Thatcher,  4  Gray  (Mass.)  526;  New  England  Jewelry  Co.  v. 
Merriam,  2  Allen  (Mass.)  890;  Coburn  v.  Stephens,  137  Ind.  683,  36  N.  E.  132; 
Jewett  V.  Tomllnson,  137  Ind.  326,  36  N.  E.  1106;  Shaffer  v.  McCloskey,  101 
Cal.  576,  36  Pac.  198. 


232  ESTATES    A3    TO    QUALITY MORTGAGES.  (Ch.   9 

a  first  mortgagee  purchases  the  equity  of  redemption,  there  will  be 
no  merger  if  there  are  subsequent  mortgages.'®*  In  order  that 
merger  may  take  place,  the  mortgage  and  the  equity  of  redemption 
must  be  held  by  the  same  person,  and  in  the  same  right.*""  In  de- 
termining whether  a  merger  takes  place,  the  intention  of  the  parties 
is  the  chief  test;  **>^  and,  as  to  such  intention,  their  relation  to  each 
other  and  to  the  mortgage  debt  is  material,  when  they  hare  not 
shown  their  intention  by  express  words.*"^  However,  a  merger 
will  never  be  prevented  by  the  intention  of  the  parties,  where  it 
will  work  wTong  or  injury  to  others.*"^  WTien  one  who  has  war- 
ranted against  incumbrances  pays  a  mortgage,  the  mortgage  is  dis- 
charged.*"* And  so  when  payment  is  by  the  mortgagor,  except  un- 
der special  circumstances,  such  as  when  the  mortgagor  has  convey- 
ed the  equity  of  redemption  to  one  who  has  assumed  the  mortgage 
debt.*""  When  the  mortgagee  acquires  the  right  of  redemption. 
there  is  no  merger,  if  there  are  intervening  incumbrances  or  liens,***® 
nor  when  the  mortgagee  has  assigned  the  mortgage  before  he  ac- 

899  Gibbs  V.  Johnson  (Mich.)  62  N.  W.  145;  Button  v.  Ives,  5  Mich.  515; 
Hooper  v.  Henry,  31  Minn.  264,  17  N.  W.  476;  Bell  v.  Woodward,  34  X.  H.  90; 
S  watts  V.  Bowen,  141  Ind.  322,  40  N.  E.  1057. 

*oo  Mann  v.  Mann,  49  111.  App.  472;  Sprague  v.  Beamer,  45  IlL  App.  17; 
Souther  v.  Pearson  (N.  J.  Ch.)  28  Atl,  450.  At  common  law  an  assignment  of 
the  mortgage  to  the  wife  of  the  mortgagor  discharged  it  by  merger.  1  Jones, 
Mortg.  (5th  Ed.)  §  850.  But  such  is  not  now  the  rule.  Model  Lodging  House 
Ass'n  v.  Boston,  114  Mass.  133;  Newton  v.  Manwan-ing,  56  Hun,  045,  10  N. 
Y.  Supp.  347;  McCrory  v.  Little,  136  Ind.  86,  35  N.  E;  836;  Bean  v.  Boothby, 
57  Me.  295.     And  see  Bemis  v.  Call,  10  Allen  (Mass.)  512. 

<oi  Lynch  v.  PfeifEer,  110  N.  Y.  33,  17  N.  E.  402;  Loomer  v.  Wheelwright, 
3  Sandf.  Ch.  (N.  Y.)  135;  Aetna  Life  Ins.  Co.  v.  Com,  89  lU.  170;  Jarvis  v. 
LMnk,  14  111.  396;  Loverin  v.  Ti-ust  Co.,  113  Pa.  St.  6,  4  Atl.  191;  Aiken  v. 
Railway  Co.,  37  Wis.  4G9;    Walker  v.  Goodsill,  54  Mo.  App.  631. 

*02  Smith  V.  Roberts,  91  N.  Y.  470;  James  v.  Morey,  2  Cow.  (N.  Y.)  246; 
Chase  v.  Van  Meter,  140  Ind.  321,  39  N.  E.  455. 

*0  3  McGlven  v.  Wheelock,  7  Barb.  (N.  Y.)  22;  First  Nat  Bank  of  Lebanon 
V.  Essex,  84  Ind.  144. 

404  1  Jones,  Mortg.  (5th  Ed.)  §  854;  Hancock  v.  Fleming,  103  Ind.  533,  8  N. 
B.  254. 

40  6  And  see  Abbott  v.  Kasson,  72  Pa.  St.  183. 

406  Smith  V.  Swan,  60  Iowa,  412,  29  N.  W.  402;  Pike  v.  Gleason,  60  Iowa. 
150,  14  N.  W.  210;  Hanlon  v.  Doherty,  109  Ind.  37,  9  N.  B.  782.  But  see  Tem- 
ple V.  Whittier,  117  111.  282,  7  N.  E.  642. 


§    136)  DISCHARGE    OF    A    MORTGAGE REDEMPTION.  233 

quires  the  equity  of  redemption.***^  Whether  or  not  a  merger  ha» 
taken  place  cannot  be  determined  by  an  inspection  of  the  record, 
because,  as  we  have  seen,  a  merger  may  be  prevented  by  the  inten- 
tion of  the  parties.*"* 

SAME— REDEMPTION. 

136.  A  mortgage  may  be  discharged  by  being  redeemed 
by  any  one  who  has  an  interest  in  the  equity  of  re- 
demption paying  the  whole  amount  due  on  the 
mortgage,  before  the  right  to  redeem  is  barred  by 
foreclosure  or  lapse  of  time. 

At  common  law,  after  breach  of  condition,  the  estate  of  the  mort- 
gagor was  absolutely  determined.  But  courts  of  equity  subse- 
quently granted  relief  from  the  harshness  of  this  rule,  by  giving  the 
mortgagor,  or  those  succeeding  to  his  interests,  a  right  of  redemp- 
tion."* This  constitutes  the  chief  difference  between  mortga- 
ges at  common  law  and  in  equity.  It  has  already  been  said  that  a 
mortgage  may  be  discharged  by  performance  after  breach  of  the 
condition,  if  the  mortgagee  accepts  the  performance.  If  the  mort- 
gagee refuses  to  accept,  the  mortgagor  must  resort  to  a  court  of 
equity  to  enforce  his  right  of  redemption,  and  secure  a  discharge 
of  the  mortgage.  A  bUl  in  equity  is  the  only  method  of  enforcing 
a  right  of  redemption.*"  To  such  a  bUl  all  persons  having  an  in- 
terest in  the  mortgaged  premises -should  be  made  parties.*"  The 
decree  in  such  case  fixes  the  time  within  which  redemption  must 
be  made.*^' 

407  International  Bank  of  Chicago  v.  Wilshire,  108  111.  143. 
40  8  Morgan  v.  Hammett,  34  Wis.  512;    Worcester  Nat.  Bank  v.  Cheney,  87 
111.  602;   Purdy  v.  Huntington,  42  N.  Y.  334. 

409  2  Jones,  Mortg.  (5th  Ed.)  §  1038;   Digby,  Hist.  Real  Prop.  (4th  Ed.)  283. 

410  2  Jones,  Mortg.  (5th  Ed.)  §  1093;  Chase  v.  Peck,  21  N.  Y.  581;  Hill  v. 
Payson,  3  INIass.  559;  Parsons  v.  Welles,  17  Mass.  419;  Woods  v.  Woods,  66 
Me.  206. 

411  Posten  V.  Miller,  60  Wis.  494,  19  N.  W.  540;  Sutherland  v.  Rose,  47  Barb. 
(N.  Y.)  144;  Chase  v.  Bank,  1  Tex.  Civ.  App.  595,  20  S.  W.  1027;  Stillwell  v. 
Hamm,  97  Mo.  579,  11  S.  W.  252;  Marco  v.  Hieklin,  6  C.  C.  A.  10,  56  Fed. 
549. 

413  Chicago  &  C.   RolUng-MiU  Co.   v.   Scully,   141  III.  408,  30  N.  E.  1062; 


234  ESTATES    AS    TO    QUALITY MOBXQAQES.  (Ch.   9 

Who  may  Redeem. 

Any  one  having  an  interest  In  the  mortgaged  premises  may  re- 
deem, if  he  would  be  a  loser  by  foreclosure.*^^  But  the  interest 
must  come  through  the  mortgagor,  and  therefore  one  holding  a 
tax  title  has  no  right  to  redeem.*^*  An  interest  in  part  of  the  mort- 
gaged premises  is  sufficient  to  give  the  right.*  ^^  Xor  need  the  in- 
terest be  one  in  fee.  A  tenant  for  life  or  years  may  exercise  the 
right.*  ^^  A  mortgagor  who  has  conveyed  the  premises  with  cov- 
enants of  warranty  cannot  redeem.*^''  If  a  second  mortgage  has 
been  foreclosed,  the  mortgagor  has  no  right  to  redeem  from  the  first 
mortgage.*^'  But  if  a  first  mortgage  is  foreclosed  a  junior  mort- 
gagee may  redeem,  if  not  made  a  party  to  the  foreclosure  of  the  first 
mortgage.**'  An  assignee  of  the  equity  of  redemption  may  redeem, 
whether  he  is  an  assignee  by  act  of  parties,* ^'^  or  by  operation  of 
law.*'*  The  heirs  of  the  mortgagor  or  of  the  owner  of  the  equity 
of  redemption  may  redeem,  unless  the  equity  has  been  devised  to 
another.***  So  the  guardian  of  an  infant  heir  may  exercise  the 
right.***     A  joint  owner  may  redeem  by  paying  the  whole  debt,*** 

Bremer  v.  Dock  Co.,  127  111.  464,  18  N.  E.  321;  Dennett  v.  CJodman,  158  Mass. 
871,  33  N.  E.  574;   McKenna  v.  Kirkwood,  50  Mich.  544,  15  N.  W.  898. 

*X3  Campbell  v.  EUwanger,  81  Hun,  259,  30  N.  Y.  Supp.  792;  Grant  v. 
Duane,  9  Johns.  (N.  Y.)  593 ;  Powers  v.  Lumber  Co.,  43  Mich.  4G8,  5  N.  W. 
656;  Piatt  v.  Squire,  12  Mete.  (Mass.)  494;  Farnum  v.  Metcalf,  8  Cush.  (Mass.) 
46.  As  a  mortgagor  under  a  deed  absolute  in  foi-m.  McArthur  v.  liobinsou 
(Mich.)  62  N.  W.  713. 

*i*  Sinclair  v.  Learned,  51  Mich.  335,  16  N.  W.  672.- 

*iB  In  re  WiUard,  5  Wend.  (N.  Y.)  94;  Boqut  v.  Coburn,  27  Barb.  (N.  Y.)  230. 

*i«  Averill  v.  Taylor,  8  N.  Y.  44;   Lamson  v.  Drake,  105  Mass.  564 

41 T  PhiUips  V.  Leavitt,  54  Me.  405;   Ti-ue  v.  Haley,  24  Me.  297. 

*i8  Calwell  7.  Warner,  36  Conn.  224. 

419  Jackson  v.  Weaver,  138  Ind.  539,  38  N,  E.  166;  Thompson  v.  Chandler, 
7  Me.  377;   Loomis  v.  Knox,  60  Conn.  343,  22  AU.  771. 

4  20  Scott  V.  Henry,  13  Ark.  112;  Gordon  v.  Smith,  10  C.  C.  A.  516,  62  Fed. 
503.  And  on  seeking  redemption  h^  need  not  prove  a  valuable  consideration. 
Barnard  v.  Cushman,  35  111.  451. 

421  White  V.  Bond.  16  Mass.  400. 

42  2  Zaegel  v.  Kuster,  51  Wis.  31,  7  N.  W.  781;  Chew  v.  Hyman,  10  Biss. 
240,  7  Fed.  7;   Lewis  v.  Nangle,  2  Ves.  Sr.  43L 

42  8  Pardee  v.  Van  Anken,  3  Barb.  (N.  Y.)  534. 

42  4  Taylor  v.  Porter,  7  Mass.  355;  Calkins  r.  Munael,  2  Root  (Conn.)  333; 
Lyon  V.  Bobbins,  45  Conn.  513. 


136)  DISCHARQK   OP    A    MORTGAGE — REDEMPTION. 


235 


and  can  hold  the  land  to  secure  contribution  from  his  co-owners.*" 
A  junior  mortgagee  may,  of  course,  redeem;**'  but  he  must  have 
given  a  valuable  consideration  for  his  mortgage,  so  that  it  is  a  valid 
security.*"  And  he  may  redeem,  although  a  prior  mortgagee  holds 
the  equity  of  redemption.*^'  A  widow  of  the  mortgagor,  who  iias 
released  her  dower,  may  redeem  from  the  mortgage;**®  but,  to  do 
so,  she  is  required  to  pay  the  whole  amount,  and  not  merely  one- 
third.*^"  So  also  a  tenant  by  the  curtesy  has  a  right  of  redemption. 
A  judgment  creditor  of  the  mortgagor  may  redeem  without  the  Innrf 
being  first  sold  on  execution.* ^^  On  the  other  hand,  a  general  cred- 
itor of  a  mortgagor,  who  has  no  specific  lien  on  the  lands  mortga- 
ged, cannot  exercise  a  right  of  redemption.***  But  an  assignee  In 
bankruptcy  may.*" 

Ammmt  Payable, 

The  sum  which  must  be  paid  in  order  to  redeem  from  a  mortgagp 
is  the  amount  of  the  mortgage  debt  and  interest  stUl  due.***  But 
money  paid  by  the  mortgagee  in  discharging  a  prior  incumbrance, 
together  with  the  costs  thereby  incurred,  may  be  added  to  the 

<26  Taylor  v.  Porter,  7  Mass.  355. 

<2  6  Frost  V.  Bank,  70  N.  Y.  553;  Sager  y.  Tupper,  35  Mich.  134;  Lamb  v. 
Jeffrey,  41  Mlcli,  719,  3  N.  W.  204;   Moi-se  v.  Smith,  83  IlL  396. 

♦2  7  Skinner  v.  Young,  80  Iowa,  234,  45  N.  W.  889. 

428  Rogers  V.  Herron,  92  111.  583. 

*2o  Phelan  v.  Fitapatrlck,  84  Wis.  240,  54  N.  W.  614;  Posten  v.  Miller,  60 
Wis.  494,  19  N.  W.  540;  Denton  v.  Nanny,  8  Barb.  (N.  Y.)  618;  McCabe  v. 
Bellows,  1  Allen  (Mass.)  2G9,  7  Gray  (Mass.)  148;  McArthur  v.  Franklin,  16 
Ohio  St.  193.  And  see  Campbell  v.  Ellwanger,  81  Hun,  259,  30  N.  Y.  Supp. 
792. 

430  McCabe  v.  Bellows,  7  Gray  (Mass.)  148. 

431  Boynton  v.  Pierce,  151  lU.  197,  37  N.  E.  1024;  Whitehead  v.  Hall,  148 
IlL  253,  35  N.  E.  871;  Todd  v.  Johnson,  56  Minn.  60,  57  N.  W.  320.  But  he 
cannot  redeem  a  mortgage  on  a  homestead  when  he  has  no  lien  thereon. 
Spurgin  v.  Adamson,  62  Iowa,  661,  18  N.  W.  293. 

43  2  Long  V.  Mellet  (Iowa)  63  N.  W.  190;  McNiece  v.  Eliason,  78  Md.  168,  27 
All.  940. 

*«8  Lloyd  V.  Hoo  Sue,  5  Sawy.  74,  Fed.  Cas.  No.  8,432. 

484  Cowles  V.  Marble,  37  Mich.  158;  ChUds  v.  Childs,  10  Ohio  St.  339.  And 
Bee  Shearer  v.  Field,  6  Misc.  Rep.  189,  27  N.  Y.  Supp.  29;  Gleason  v.  Kinney, 
65  Vt.  560.  27  AtL  208. 


236  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.  9 

amount  of  the  mortgage,*'"  as  may  be  also  attorney's  fees  provided 
for  in  the  mortgage,*^*  and  insurance  premiums.''^^  The  mortga- 
gee cannot  be  compelled  to  release  a  portion  of  the  premises  by  pay- 
ment of  part  of  the  sum  due.*^'  When  one  who  has  not  been  made 
a  party  redeems,  the  entire  amount  of  the  mortgage  debt  must  be 
paid,  though  the  land  has  sold  for  less.*"  By  agreement  of  the  par- 
ties, there  may  be  a  redemption  of  part  of  the  premises  only.**" 

Same — Contribution  to  Redeem. 

One  who  redeems  by  paying  the  whole  of  a  debt,  for  which  he  ia 
liable  for  a  part  only,  is  entitled  to  contribution  from  those  who  are 
liable  for  the  balance.**^  Contribution  is  never  enforced,  except 
between  those  whose  equities  are  equal.***  Therefore  purchasers 
subsequent  to  a  second  mortgage  cannot  compel  contribution 
against  the  second  mortgagee,  when  the  first  mortgage  is  enfor- 
ced against  them.**'  And  a  mortgagor  who  has  conveyed  with 
covenants  of  warranty,  after  he  has  paid  the  mortgage,  cannot  en- 

<«8  Long  V.  Long,  111  Mo.  12,  19  S.  W.  537. 
*8  8  Hosford  V.  Johnson,  74  Ind.  479. 

*87  Id. 

488  Boqut  V.  Coburn,  27  Barb.  (N.  Y.)  230;  Merrltt  v.  Hosmer,  11  Gray 
(Mass.)  276;  Meacbam  v.  Steele,  93  111.  13o;  Knowles  v.  Rablin,  20  Iowa,  101. 
And  see  Commercial  Bank  v.  Hiller  (Mich.)  63  N.  W.  1012;  Norton  v.  Henrj', 
67  Vt  308,  31  Atl.  787.  So  as  to  redemption  by  joint  owners.  Ward  r.  Green 
(Tex.  Civ.  App.)  28  S.  W.  574. 

430  Bradley  v.  Snyder,  14  111.  203;  Martin  v.  Fridley,  23  Minn.  13;  Hosford 
V.  Johnson,  74  Ind.  479;   Johnson  v.  Haraion,  19  Iowa,  56. 

**o  Union  Mut.  Life  Ins.  Co.  v.  Klrchofif,  133  111.  308,  27  N.  B.  91.  In  Eng- 
land, by  what  is  called  the  "doctrine  of  consolidation,"  one  who  owns  several 
mortgages,  though  on  different  lands,  and  executed  at  different  times,  may 
compel  a  redemption  of  all  of  them  by  one  seeking  to  redeem  any  one  of 
them.  This  doctrine  has  been  recognized  in  only  a  few  American  cases.  2 
Jones,  Mortg.  (5th  Ed.)  §  1082.  See  Scripture  v.  Johnson,  8  Conn.  211;  Bank 
of  South  Carolina  v.  Rose,  1  Strob.  Eq.  (S.  C.)  257.  The  English  doctrine  of 
tacking,  by  which  the  holder  of  a  first  and  subsequent  mortgage  may  cut  out 
the  rights  of  intervening  mortgagees,  is  inconsistent  with  our  registry  system, 
and  does  not  prevail  In  this  country.     2  Jones,  Mortg.  (5th  Ed.)  §  1082. 

**i  Coffin  V.  Parker,  127  N.  Y.  117,  27  N.  E.  814;  Stevens  v.  Cooper,  1  Johns. 
Ch.  (N.  Y.)  425;  Damm  v.  Damm,  91  Mich.  424,  51  N.  W.  1069.  But  see  Chase- 
V.  Woodbury,  6  Cush.  (Mass.)  143. 

4*2  Sanford  v.  Hill,  46  Conn.  42;    Henderson  v.  Tiniitt,  95  Ind,  309. 

443  Henderson  v.  Truitt,  95  Ind.  309. 


§    136)  DISCHARGE    OF    A    MORTGAGE REDEMPTION.  237 

force  contribution  against  his  grantee.***  Where  the  mortgaged 
premises  have  been  conveyed  in  separate  parcels,  the  parcels  are 
liable  in  the  inverse  order  of  their  alienation.**"^  Between  those 
who  hold  separate  parts  of  mortgaged  land  by  simultaneous  convey- 
ances, contribution  is  to  be  enforced  according  to  the  present  value 
of  the  parcels,  exclusive  of  the  improvements  placed  thereon  by  the 
purchasers.**® 

When  Redemption  is  Barred. 

The  right  of  redemption  is  barred  by  foreclosure,  and  by  lapse 
of  time.**^  Foreclosure,  however,  does  not  have  this  effect  if  the 
mortgagee  subsequently  recognizes  the  mortgage  as  still  exist- 
ing.*** Nor  does  foreclosure  bar  a  right  to  redeem  against  one  not 
made  a  party  to  the  foreclosure  suit.**®  In  several  states,  by  stat- 
ute, redemption  may  be  made  for  a  certain  period  after  a  fore- 
closure sale,  the  same  as  after  a  sale  on  execution.**" 

By  analogy  to  the  statute  of  limitations,  the  courts  of  most  states 
hold  that  the  right  of  redemption  is  barred  when  the  mortgagee  is 
in  possession  after  the  lapse  of  a  time  sufficient  to  give  title  to 
realty  by  prescription.*  °^  Some  states  have  express  statutory  en- 
■actments  as  to  when  the  right  of  redemption  is  barred.*"     The 

444  Sargeant  v.  Rowsey,  89  Mo.  617,  1  S.  W.  823. 

446  Gill  V.  Lyon,  1  Johns.  Ch.  (N.  Y.)  447;  Clowes  v.  Dickenson,  5  Johns. 
(Jh.  (N.  Y.)  235,  affirmed  9  Cow.  (N.  Y.)  403;  Bates  v.  Ruddick,  2  Iowa,  423; 
Deavitt  v.  Judevine,  60  Vt.  695,  17  Atl.  410;  Solicitors'  Loan  &  Trust  Co. 
V.  Washington  &  L  Ry.  Co.,  11  Wash.  6S4,  40  Pac.  344.  But  that  the  parcels 
are  proportionately  liable,  see  Huff  v.  Farwell,  67  Iowa,  298,  25  N.  W.  252; 
Dickey  v.  Thompson,  8  B.  Mon.  (Ky.)  312.  And  cf.  Turner  v.  Flenniken,  1C>4 
Pa.  St.  469,  30  Atl.  480;    Dates  v.  Winslanley,  53  111.  App.  023. 

446  Bates  v.  Ruddick,  2  Iowa,  423. 

447  Weiner  v.  Heintz,  17  111.  259;   Stoddard  v.  Forbes,  13  Iowa,  296. 
44  8  Lounsbury  v.  Norton,  59  Conn.  170,  22  Atl.  153. 

448  Farwell  v.  Antis,  2  Wis.  533;  Murphy  v.  FarweU,  9  Wis.  102;  Hodgen  v. 
Guttery,  58  111,  431;  Strang  v.  Allen,  44  111.  428;  American  Buttonhole,  etc., 
Co.  V.  Burlington  Mut  L.  Ass'n,  61  Iowa,  464,  16  N.  W.  527. 

460  1  stim.  Am.  St.  Law,  §  1944  A,  B;  2  Jones,  Mortg.  (5th  Ed.)  §  1051;  Gates 
V.  Ege,  57  Minn.  405,  59  N.  W.  495. 

461  Harter  v.  Twohlg,  158  U.  S.  448,  15  Sup.  Ct  883;  Robinson  v.  Fife,  8 
Ohio  St.  551;  Jarvis  v.  W^oodruff,  22  Conn.  548;  Fox  v.  Blossom,  17  Blatchf. 
852,  Fed.  Cas.  No.  5,008.    As  to  prescription,  see  post,  p.  45G. 

4  62  1  stim.  Am.  St.  Law,  §  1944  C. 


238  ESTATES  AS  TO  QUAIJTY MORTGAGES.  (Ch.  9' 

courts  of  some  states  hold  that  the  right  to  redeem  is  barred  at  the 
same  time  as  the  right  to  foreclose."^''  In  order  that  possession  by 
the  mortgagee  may  bar  the  right  of  redemption,  it  is  necessary  that 
the  possession  be  adverse  during  the  whole  period  of  limitation.*"* 
The  right  to  redeem  is  lost  by  limitation  only  when  the  mortgagee 
is  in  possession.*"  The  bar  of  the  right  of  redemption  by  lapse  of 
time  is  removed  by  anything  which  shows  the  mortgage  as  still 
continuing,  such  as  by  the  rendering  of  an  account,*"^'  the  assign- 
ment of  the  mortgage,*''^  recitals  by  the  mortgagee  in  a  deed  or 
will,*"^'  or  by  proceedings  to  foreclose.*" 

SAME— FORM  OF  DISCHARGE. 

137.  The  formal  discharge  of  a  mortgage  may  be  by: 

(a)  A  reconveyance. 

(b)  An  entry  of  satisfaction  on  the  record. 

It  has  been  seen  that,  in  the  states  where  the  lien  theory  of  mort- 
gages prevails,  the  mortgage  is  discharged  merely  by  performance, 
but  the  mortgage  still  remains  a  cloud  upon  the  mortgagor's  title, 
so  that  some  formal  discharge  is  necessary.  The  discharge  of  a 
mortgage  may  take  the  form  of  a  reconveyance,*®"  as  by  a  quit- 
claim deed  from  the  mortgagee  to  the  mortgagor.*'^  It  is  gener- 
ics Green  v.  Cross,  45  N.  H.  574;  King  v.  Melghen,  20  Minn.  264  (GiL  237); 
Koch  V.  Brlggs,  14  Gal.  256. 

4  54  Simmons  v.  Ballard,  102  N.  C.  105,  9  S.  E.  495;  McPherson  v.  Hay  ward, 
81  Me.  329,  17  Atl.  164;  Frisbee  v.  Frisbee,  86  Me.  444,  29  Atl.  1115. 

*5o  Maurhoffer  v.  Mittnacht,  12  Misc.  Rep.  585,  34  N.  Y.  Supp.  439;    Bird  v. 
Keller,  77  Me.  270.    And  see  Frink  t.  Le  Roy,  49  CaL  314;   Anding  v,  Davis, 
88  Miss.  574. 
*66  Edsell  V.  Buchanan,  2  Ves.  Jr.  83. 
4  57  Borst  V.  Boyd,  3  Sandf.  Cb.  (N.  Y.)  501. 
4B8  Hansard  v.  Hardy,  18  Ves.  455. 

4B0  Calkins  v.  Calkins,  3  Barb.  (N.  Y.)  305;  Robinson  v.  Fife,  3  Ohio  St.  55L 
48  0  1  Jones,  Mortg.  (5th  Ed.)  §  972;   Mutual  Building  &  Loan  Ass'n  v.  Wyeth 
(Ala.)  17  South.  45. 

461  Donlin  v.  Bradley,  119  IlL  412,  10  N.  E.  11;  Woodbury  v.  Aikin.  13  111. 
639;  Barnstable  Sav.  Bank  v.  Ban-ett,  122  Mass.  172.  But  see  Weldon  v. 
Tollman,  15  C.  C.  A.  138,  67  Fed.  986.  As  to  what  is  a  quitclaim  deed,  see 
post,  p,  412. 


§§    138-139)  FORECLOSURE.  239 

ally  provided  by  statute  that  a  mortgage  may  be  discharged  by 
putting  on  record  a  satisfaction;  that  is,  a  certificate  by  the  mort- 
gagee that  the  mortgage  has  been  satisfied.  In  many  states  an  en- 
try of  satisfaction  on  the  margin  of  the  record  of  the  mortgage  is 
sufficient.*"  Discharge  of  a  mortgage  may  be  compelled  by  a  bill 
in  equity,*®'  but  in  many  states  a  penalty  is  provided  by  statute, 
which  the  mortgagor  may  collect  of  the  owner  of  the  mortgage  for 
failure  to  enter  satisfaction  of  record-*'* 


FORECLOSURE. 

138.  Foreclosure   is   the  proceeding  by  which  the  mort- 

gaged premises  are  applied  to  the  payment  of  the 
mortgage  debt,  and  the  right  of  redemption  barred. 

139.  Foreclosure  will  be  treated  under  the  following  heads: 

(a)  When  the  right  to  foreclose  accrues  (p.  239). 

(b)  When  the  right  to  foreclose  is  barred  (p.  240). 

(c)  Decree  for  deficiency  (p.  241). 

(d)  Personal  remedies  (p.  241), 

(e)  Receivers  (p.  241). 

(f)  Kinds  of  foreclosure  (p.  242). 

When  the  Right  to  Foreclose  Accrues. 

By  the  early  common  law,  a  mortgagee's  Interest  became  abso- 
lute by  breach  of  the  condition  in  the  defeasance;  but,  after  the 
right  to  an  equity  of  redemption  becamie  established,*"  some  pro- 
ceeding had  to  be  taken  before  the  mortgagee  could  make  the  land 
available  for  the  satisfaction  of  the  mortgage  debt 

468  1  stim.  Am.  St.  Law,  §  1905. 

463  Remington  Paper  Co.  v.  O'Dougherty,  81  N.  Y.  474. 

48*1  stim.  Am.  St  Law,  §  1002;  Crawford  v.  Simon,  159  Pa.  St.  585,  28  AtL 
491;  Spaulding  v.  Sones  (Ind.  App.)  39  N.  E.  526;  Jones  v.  Trust  Co.  (S.  D.)  G3 
N.  W.  553;  Walker  v.  English  (Ala.)  17  South.  715.  There  are  in  some  states 
similar  provisions  as  to  the  entry  of  ci'edits.  Loeb  v.  Huddleston  (AJa.)  16 
South.  714. 

46 B  See  ante,  p.  183. 


"240  EaiATES    AS    TO    QUALITY MORTGAGES.  (Cll.  9 

The  right  to  enforce  a  mortgage  exists  as  soon  as  there  is  a 
breach  by  nonpayment  at  the  time  fixed,  or  by  failure  of  perform- 
ance of  the  condition  of  the  mortgage,  whatever  it  may  be.""»  But 
a  surety  or  indorser  of  the  mortgage  note  cannot  foreclose  a  mort- 
giige  given  to  indemnify  him,  until  he  has  actually  paid  the  note.**^' 
When,  however,  the  condition  of  the  mortgage  is  to  save  hai-mless, 
foreclosure  proceedings  may  be  begun  on  the  failui*e  of  the  mort- 
gagor to  pay  the  note  when  due.*®* 

When  the  Bight  to  Foreclose  is  Barred. 

The  courts  have  applied  the  statute  ,of  limitations,  by  analogy,  to 
proceedings  for  the  foreclosure  of  mortgages.***  And  in  some  states 
there  are  special  statutory  provisions  on  the  subject.*''"  The  right 
to  foreclose  is  never  barred  by  lapse  of  time,  unless  the  mortgagor 
has  been  in  possession  without  the  pa^-ment  of  principal  or  inter- 
^»st.*"  Such  a  bar  to  foreclosure  may  be  waived  by  recognition  of 
the  mortgage  as  still  existing.* ^^  Discharge  of  the  debt  by  the 
statute  of  lunitations  does  not  discharge  the  mortgage  lien,*"  ex- 
cept in  a  few  states.*^*  A  decree  for  deficiency  cannot  be  had  in 
a  foreclosure  suit  after  the  debt  is  barred,*"  nor  can  an  equitable 
lien  for  purchase  money  be  enforced  after  the  debt  itself  is  bar- 

*66  Harding  v.  Manufacturing  Co.,  34  Conn.  458;  Trayser  v.  Trustees  of  As- 
bury  University,  39  Ind.  556;   Gladwyn  v.  Hitchman,  2  Vern.  135. 

467  Burt  V.  Gamble,  98  Mich.  402,  57  N.  W.  2G1;  Lewis  v.  Richey,  5  Ind.  152; 
Francis  v.  Porter,  7  Ind.  213;  Dye  v.  Mann,  10  Mich.  291.  Cf.  Kramer  v.  Bank, 
15  Ohio,  253. 

48  8  Thurston  v.  Prentiss,  1  Mich.  193. 

46  0  Ray  V.  Pearce,  84  N.  C.  485;  Cleveland  Ins.  Co.  v.  Reed,  1  Biss.  180,  Fed. 
Cas.  No.  2,889. 

4T0  See  1  Stim.  Am.  St.  Law,  §  1928;  2  Jones,  Mortg.  (5th  Ed.)  §  1193.    And 
see  In  re  Tarbell,  160  Mass.  407,  36  N.  E.  55. 
4T1  Locke  V.  Caldwell,  91  111.  417;   Chouteau's  Ex'r  v.  Burlando,  20  Mo.  482. 

47  2  Schifferstein  v.  Allison,  123  111.  662,  15  N.  E.  275;  Blair  v.  Carpenter,  75 
Mich.  167,  42  N.  W.  790;   Carson  v.  Cochran,  52  Minn.  67,  53  N.  W.  1130. 

47  8  Thayer  v.  Mann,  19  Pick.  (Mass.)  535;  Michigan  Ins.  Co.  v.  Brown,  11 
Mich.  265;   Mott  v.  Maris  (Tex.  Civ.  App.)  29  S.  W.  825. 

474  Pollock  V.  Maison,  41  lU.  516;  Duty  v.  Graham,  12  Tex.  427;  City  of  Ft. 
Scott  V.  Schulenberg,  22  Kan.  648;   Lord  v.  Morris,  18  Cal.  4S2. 

47  6  Hulbert  v.  Clark,  57  Hun,  658,  11  N.  Y.  Supp.  417;  Slingerland  v,  Sherer, 
AA  Minn.  422,  49  N.  W.  237. 


§§    138-139)  FOBECL08URE.  241 

red-*^'     The  statnte  begins  to  run  from  the  time  the  condition  Ifi 

broken.*  ^^ 

Decree  for  Deficiency. 

In  almost  all  the  states,  and  in  the  federal  courts,  a  decree  for  a 
deficiency  of  the  mortgage  debt  may  be  rendered  in  the  foreclo- 
sure suit.*^®  And  for  this  purpose,  in  most  states,  third  persons 
liable  for  the  debt  may  be  joined  as  defendants.*"  But  such  a  judg- 
ment cannot  be  rendered  against  one  who  has  not  been  made  a 
party.**"  When  the  mortgagor  or  principal  debtor  is  dead,  no  judg- 
ment for  the  deficiency  can  be  rendered  against  his  personal  rep- 
resentative.    The  deficiency  must  be  proved  against  his  estate.*'^ 

Personal  Remedies — Recewen, 

The  proceedings  for  enforcing  a  mortgage,  and  the  personal  rem- 
edies against  the  debtor,  are  concurrent,*'^  But,  in  most  states 
where  judgment  for  the  deficiency  may  be  given  on  foreclosure,  a 
personal  action  for  the  debt  cannot  be  maintained  against  the  debtor 
while  foreclosure  proceedings  are  pending,*"  and  in  some  states 

4Te  Borst  v.  Corey,  15  N.  Y.  505;   Llttlejohn  v.  Gordon,  32  Miss.  235. 

47  7  The  mortgagor,  or  the  one  holding  under  him,  being  In  i)os®essdon. 
Nevitt  V.  BacKm.  32  Miss.  212.    See  Coyle  v.  Wilkins,  57  Ala.  108. 

47  8  Grand  Island  Savings  &  Loan  Ass'n  v.  Moore,  40  Neb.  686,  59  N. 
W.  115;  Flentham  r.  Steward,  45  Neb.  640,  63  N.  W.  924;  Shumway  v.  Orchard 
(Wash.)  40  Pac.  634.  To  authorize  such  a  judgment  against  a  grantee,  he 
must  have  assumed  the  mortgage.  Blass  v.  Terry,  87  Hun,  563,  34  N.  Y.  Supp. 
475;  Williams  v.  Maftzger,  103  Cal.  438,  37  Pac.  411;  Green  v.  Hall,  45  Neb. 
89.  63  N.  W.  119.  Cf.  Farmers'  Loan  &  Trust  Co.  t.  Grape  Creek  Coal  Co.,  13 
C.  C.  A.  87,  65  Fed.  717. 

*79  Palmeter  v.  Carey,  63  Wis.  426,  21  N.  W.  793,  and  23  N.  W.  586;  2  Jones, 
Mortg.  (5th  Ed.)  §  1710.  But  not  In  the  absence  of  a  statute  permitting  it  Id. 
But  see  Hilton  v.  Bank,  26  Fed.  202. 

4  80  Williams  v.  Follett,  17  Colo.  51,  28  Pac.  330.  Such  as  a  nonresident 
who  has  not  appeared.  Schwinger  v.  Hlckok,  53  N.  Y.  280  (a  mortgagor); 
Blumberg  v.  Birch,  99  Cal.  416,  34  Pac.  102. 

481  Leonard  v.  Morris,  9  Paige  (N.  Y.)  90;  Pechaud  v.  Rlnquet,  21  CaL  76. 
And  see  Mutual  Ben.  Life  Ins.  Co.  v.  Howell,  32  N.  J.  Eq.  146;  Null  v.  Jones, 
5  Neb.  500. 

483  Rothschild  V.  Railway  Co.,  84  Hun,  103,  32  N.  Y.  Supp.  37;  Jackson  v. 
Hull,  10  Johns.  (N.  Y.)  481;  Hughes  v.  Edwards,  9  Wheat.  489;  Torrey  v. 
Cook,  116  Mass.  163.     But  see  Felton  v.  West,  102  Cal.  266,  36  Pac.  676. 

48  8  Holmes  v.  Railway  Co.  (N.  J.  Sup.)  29  Atl.  419;    Hargreaves  v.  Men- 

REAL  PROP. — 16 


242  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.    S 

such  a  proceeding  cannot  be  maintained  while  foreclosure  is  pend- 
ing without  consent  of  the  court.*'*  After  foreclosure  sale  the 
creditor  may  sue  on  the  mortgage  debt  for  any  deficiency  which  may 
remain  unsatisfied.""  As  an  auxiliary  remedy,  the  mortgagee  may 
obtain  the  appointment  of  a  receiver  to  take  charge  of  the  mortgaged 
premises  whenever  the  mortgage  is  insuflQcient  and  the  mortgagor  is 
insolvent,**®  and  in  some  cases  when  the  mortgagor  is  impairing  the 
security  by  committing  waste.*^^  And  the  mortgagor  may  secure 
the  appointment  of  a  receiver  when  the  mortgagee  in  possession  is 
insolvent,  and  is  committing  waste.*" 

SAME— KINDS  OF  FORECLOSURE. 

140.  The  principal  forms  of  foreclosure   employed  in  the 
several  states  are: 

(a)  By  entry  and  possession  (p.  243). 

(b)  By  -writ  of  entry  (p.  244). 

(c)  By  an  equitable  proceeding,  under  -w^liich  there  may 

be 

(1)  A  strict  foreclosure,  or 

(2)  A  decree  of  sale  (p.  248). 

(d)  By  a  poTver  of  sale  in  the  mortgage  or  deed  of  trust 

(p.  248). 

There  is  great  variety  in  the  modes  of  foreclosure  in  use  in  the 
several  states,  and  but  little  uniformity  in  detail  in  the  states  where 
the  same  method  is  used.    Jurisdiction  to  foreclose  mortgages  was 

ken,  45  Neb.  668,  63  N.  W.  951;  Powell  v.  Patison,  100  Cal.  236,  34  Pac.  677; 
Winters  v.  Mining  Co.,  57  Fed.  287. 

4  84  In  re  Moore,  81  Hun,  389,  31  N.  Y.  Supp.  110;  Meehan  v.  Bank,  44  Neb. 
213,  62  N.  W.  490. 

♦  88  Globe  Ins.  Co.  v.  Lansing,  5  Cow.  (N.  Y.)  880;  Lansing  v.  Goelet,  9  Cow. 
(N.  Y.)  346;  Hunt  v.  Stiles,  10  N.  H.  466.  But  see  Bassett  v.  Mason,  18  Conn. 
131. 

48«  Rider  v.  Bagley,  84  N.  Y.  461;  Douglass  v.  CUne,  12  Bush  (Ky.)  608; 
Ugtlon  V.  Chalfant,  32  W.  Va.  559,  9  S.  E.  879. 

*87  Cortleyeu  v.  Hathaway,  11  N.  J.  Eq.  39;  Stockman  v.  Wallis,  80  N.  J. 
Eq.  449. 

48  8  2  Jones,  Mortg.  (5th  Ed.)  §  1517.  And  see  Boston  &  P.  II.  Corp.  v.  New 
York  &  N.  E.  II.  Co.,  12  R.  I.  220. 


§    140)  KINDS    OP   FORECLOSURE.  243 

originally  in  courts  of  equity,  and  this  jurisdiction  is  very  gener- 
ally retained.**'  In  a  number  of  states  the  subject  is  fully  coverod 
by  statutory  provisions,*'**  while  in  others  the  proceedings  are  left 
to  the  inherent  powers  of  the  court.  Equitable  mortgages  are  fore- 
closed in  the  same  way  as  mortgages  in  the  usual  forrn.*'^ 

Foreclosure  hy  Entry  and  Possession. 

In  some  of  the  New  England  states,* '^  foreclosure  is  effected  by 
an  entry  on  the  mortgaged  premises,  and  the  holding  possession  for 
a  limited  time,  after  which  all  right  of  redemption  is  barred.*'^ 
After  the  expiration  of  this  time  the  mortgagee  takes  an  absolute 
estate,  and  becomes  entitled  to  all  the  rents  and  profits.  The 
entry  must  be  peaceable,  and  in  the  presence  of  two  witnesses,  who 
are  to  make  a  certificate  of  the  fact,  and  the  certificate  is  to  be  re- 
corded. But  a  certificate  of  the  mortgagor  who  consents  to  the  en- 
try, if  duly  recorded,  has  the  same  effect.*"^  An  entry  on  part  of 
the  land  is  good,*''^  and,  when  several  parcels  are  covered  by  the 
same  mortgage,  an  entry  on  one  is  sufficient.*®^  Possession  under 
the  entry  may  be  constructive.*^*  Although  the  estate  of  the  mort- 
gagee becomes  absolute  by  the  failure  of  the  mortgagor  to  redeem 
within  the  time  allowed,  this  effect  may  be  waived  by  the  acceptance 
of  payment  after  the  time  for  redemption  has  passed.*''  The  rights 
acquired  by  the  entry  may  be  assigned  before  the  time  for  redemp- 
tion has  expired.'*^"     Foreclosure  by  this  method,  when  complete, 

48»2  Jones,  Mortg.  (5th  Ed.)  §  1443. 

49  0  1  stim.  Am.  St  Law,  art  192;  2  Jones,  Mortg.  (5th  Ed.)  c.  30. 

481  Sprague  v.  Ckxihran,  144  N.  Y.  104,  38  N.  E.  1000. 

492  These  are  Maine,  New  Hampshire,  Massachusetts,  and  Rhode  Island. 

493  This  Is  three  years  In  all  the  states  except  New  Hampshire,  where  only 
one  year  is  allowed  for  redemption.  2  Jones,  Mortg.  (5th  Ed.)  §  1239;  1 
Stlm.  Am.  St  Law,  §  1921. 

49  6  1  Stim.  Am.  St  Law,  §  1921;  2  Jones,  Mortg.  (5th  Ed.)  §§  1259,  1261. 

496  Lennon  v.  Porter,  5  Gray  (Mass.)  318;  Colby  v.  Poor,  15  N.  H.  198.  But 
see  Spring  v.  Haines,  21  Me.  126. 

497  Bennett  v.  Cooiant  10  Cush.  (Mass.)  163;  Green  v.  Pettingill,  47  N.  H. 
875;   Shapley  v.  Rangeley,  1  Woodb.  &  M.  213,  Fed.  Gas.  No.  12,707. 

49  8  Ellis  V.  Drake,  8  Allen  (Mass.)  161;  Fletcher  v.  Gary,  103  Mass.  475; 
Deming  v.  Comings,  11  N.  H.  474. 

499  Joslln  V.  Wyman,  9  Gray  (Mass.)  63;  McNeU  v.  Call,  19  N.  H.  403;  Chase 
V.  McLellan,  49  Me.  375. 

BOO  Deming  v.  Comings,  11  N.  H.  474. 


244  ESTATES    AS    TO    QUALITY MORTQAQES.  (.Ch.    9 

operates  as  a  discharge  of  the  mortgage  debt,  to  the  amount  of  the 
value  of  the  land."^ 

Foreclosure  J/y   Writ  of  Entry. 

In  the  same  states  a  mortgage  may  also  be  foreclosed  by  a  writ 
of  entry.'"*  The  proceeding  is  essentially  the  same  as  that  by  en- 
try and  possession,  except  a  writ  of  entry  is  brought  to  secure  the 
possession.  This  must  always  be  the  method  where  a  peaceable 
entry  is  impossible.  A  legal  interest  in  the  land  is  necessary  to 
sustain  the  action,  and  the  writ  must  be  brought  against  the  tenant 
of  the  freehold.*"^  But  the  mortgagor  may  always  be  joined  as  de- 
fendant, though  he  has  assigned  all  his  interest.""*  If  the  plaintiff  is 
successful,  a  conditional  judgment  is  rendered, — ^that,  unless  defend- 
ant pays  the  amount  due  within  two  months,  the  plaintiff  shall  have 
possession ;  and  this  possession,  when  acquired,  has  the  same  effect 
as  possession  acquired  by  peaceable  entry, — that  is,  the  mortgagor 
has  still  three  years  within  which  to  redeem.***' 

Foreclosure  in  Equity — Parties  Plaintiff. 

As  before  stated,  the  most  usual  method  of  foreclosure  is  by  a 
proceeding  in  equity.  In  such  an  action  the  rights  of  all  parties  in 
the  mortgaged  premises  are  to  be  determined.  Therefore  all  per- 
sons interested  in  the  mortgage  debt  should  join  as  plaintiffs. "^"^ 
However,  a  mortgagee  who  has  assigned  all  his  interest  is  not  a 
proper  party  plaintiff,''*'^  unless  the  assignment  was  only  for  secur- 

ftoi  Smith  V.  Packard,  19  N.  H.  575.  And  see  Ray  v.  Scripture  (N.  H.)  29 
Atl.  454. 

BO  a  2  Jones,  Mortg.  (5th  Ed.)  §  1276.  In  Rhode  Island  possession  is  ob- 
tained by  an  action  of  ejectment    Id,  §  1279. 

B03  Somes  V.  Skinner,  16  Mass.  348;  Wheelwright  v.  Freeman,  12  Mote. 
(Mass.)  154;  Young  v.  Miller,  6  Gray  (Mass.)  152;  Johnson  v.  Brown,  31  N. 
H.  405. 

804  Straw  T.  Greene,  14  Allen  (Mass.)  206;  Hunt  v.  Hunt,  17  Pick.  (Mass.) 
118. 

BOB  2  Jones,  Mortg.  (5th  Ed.)  §  1306.  Except  In  New  Hampshire,  where  it 
is  one  year. 

B06  Jiiangels  v.  Brewing  Co.,  53  Fed.  513;  Pogue  v.  Clark,  25  111.  351; 
Shirkey  v.  Hanna,  8  Blackf.  (Ind.)  403. 

BOT  Cutler  V.  Clementson,  67  Fed.  409;  Whitney  v.  McKinney,  2  Johns.  Ch. 
(N.  Y.)  144;  McGuffey  v.  Flnley,  20  Ohio,  474;  Garrett  v.  Puckett,  15  Ind.  485. 
But  see  Saenger  v.  Nightingale,  48  Fed.  708. 


§    1  40)  KINDS    OF    FORECLOSURE.  246 

j^y  B0  8  ^jj  assignee  of  the  mortgage,  to  whom  the  bond  or  note  se- 
sured  thereby  has  not  been  transferred,  cannot  foreclose  the  mort- 
gage/°»  But,  in  states  where  an  assignment  of  the  note  carries  the 
mortgage  with  it,  an  assignee  of  the  note  without  the  mortgage  may 
bring  foreclosure  without  joining  the  mortgagee  with  him/^° 
When  several  notes  are  secured  by  the  same  mortgage,  the  holder  of 
one  note  can  file  a  bill  to  foreclose,  making  the  holders  of  the  other 
notes  defendants.'"  A  trustee  mav  foreclose  in  his  own  name  with- 
out joining  the  beneficiaries,  when  their  number  is  very  large."* 
But  a  beneficiary  who  seeks  to  foreclose  must  always  join  his  trus- 
tee."' On  the  death  of  the  mortgagee,  his  personal  representative 
is  the  proper  party  to  bring  foreclosure."*  Mortgages  given  to  per- 
sons in  their  oflicial  capacity  may  be  foreclosed  by  their  successors 
in  office."^" 

Sarne — Parties  Defendant. 

Of  parties  defendant  there  are  two  kinds, — necessary  and 
proper  parties."^ ^*  But  the  distinction  is  not  of  much  importance, 
because  all  who  are  proper  parties  should  be  joined  as  defendants, 

60  8  Kittle  y.  Van  Dyck,  1  Sandf.  Cb.  (N.  T.)  76;  Cerf  v.  Ashley,  68  Cal.  419,. 
9  Pac.  658.  Or  where  he  has  guarantied  payment.  Burnett  v.  Hoffman.. 
40  Neb.  569.  58  N.  W.  1134. 

60  9  Cooper  v.  Newland,  17  Abb.  Prac.  (N.  Y.)  342;  Merritt  v.  Bartholick,  4'* 
Barb.  (N.  Y.)  253. 

510  Briggs  V.  Hannowald,  35  Mich.  474;  Gower  v.  Howe,  20  Ind.  396; 
Swett  V.  Stark,  31  Fed.  858. 

611  Pettibone  v.  Edwards,  15  Wis.  95;  Myers  v.  Wright,  33  111.  284;  Godall 
V.  Mopley,  45  Ind.  355.  That  the  holders  of  the  notes  cannot  be  joined  as 
plaintiffs,  see  Swenson  v.  Plow  Co.,  14  Kan.  387.  Contra,  Pogue  v.  Clark, 
25  111.  351.  Joint  mortgagees  may  join,  though  the  debts  secured  are  several. 
Shirkey  v.  Hanna,  3  Blackf.  (Ind.)  403. 

612  Chicago  &  G.  W.  Railroad  Land  Co.  v.  Peck,  112  111.  408;  Lambertville 
Nat.  Bank  v.  McCready  Bag  &  Paper  Co.  (N.  J.  Ch.)  15  Atl.  388. 

618  Martin  v.  McReynolds,  6  Mich.  70;  Hambrick  v.  Russell,  86  Ala.  199,  6 
South.  298.    But  see  Ettlinger  v.  Carpet  Co.,  142  N.  Y.  189,  36  N.  B.  1055. 

61*  Dayton  v.  Dayton,  7  111.  App,  136. 

616  Iglehart  v.  Bierce,  36  111.  133. 

618  See  Tyler  v.  Hamilton,  62  Fed.  187;  Galford  v.  GlUett,  55  111.  App.  576; 
Pettingili  v.  Hubbell  (N.  J.  Ch.)  32  AtL  76;  London,  Paris  &  American  Bank 
V.  Smith,  101  CaL  415,  35  Pac.  1027. 


246  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9 

in  order  that  <all  rights  of  redemption  may  be  cut  off.""  In  general, 
all  parties  may  be  joined  who  have  any  interest  in  the  mortgaged 
premises.  And,  when  such  persons  are  not  joined,  they  may  redeem 
from  the  mortgage.'^'  A  trustee  in  a  deed  of  trust  is  a  necessary 
party,  since  he  holds  the  legal  title.""  But,  when  the  beneficiaries 
under  a  tnist  deed  are  ver}-  numerous,  it  is  not  necessary  to  make 
them  defendants.""  The  holder  of  an  equitable  estate  or  lien 
should  be  made  a  defendant.""  The  mortgagor,  while  holding  the 
equity  of  redemption,  is  a  necessary  party."^  And  so  he  must  be 
joined  whenever  a  personal  judgment  is  sought  against  him."'  But 
when  no  personal  judgment  against  the  mortgagor  is  asked,  and  he 
has  no  interest  in  the  mortgaged  premises^  he  is  not  a  proper  par- 
ty."* An  assignee  of  the  equity  of  redemption  is  a  necessary  par- 
ty,"" but,  if  he  has  transferred  the  equity,  he  cannot  be  joined."" 
A  purchaser  pendente  lite  need  not  be  made  a  defendant."^      The 

BIT  2  Jones,  Mortg.  (5th  Ed.)  §  1394. 

81 «  Chase  v.  Abbott,  20  Iowa,  154;  Gaines  t.  Walker,  16  Ind.  361;  Brad- 
ley V.  Snyder,  14  111.  263;  Brainard  v.  Cooper,  10  N.  Y.  356;  Kennedy  v. 
Moore  (Iowa)  58  N.  W.  1066;  Hunt  v.  Nolen,  40  S.  C.  284,  18  S.  E.  798.  But 
see  Eschmann  v.  Alt,  4  Misc.  Rep.  3(»,  24  N.  Y.  Supp.  763. 

618  Gardner  v.  Brown,  21  Wall.  36. 

8  20  Van  Vechten  v.  Terry,  2  Johns.  Ch.  (N.  Y.)  197;  Willis  v.  Henderson,  B 
III.  13. 

8»i  Noyes  v.  Hall,  97  U.  S.  34;  De  Ruyter  v.  St.  Peter's  Church,  2  Barb.  Ch. 
.<N.  Y.)  555.  As  to  joining  as  defendants  persons  entitled  in  remainder  or  re- 
'version,  see  Nodine  v.  Greenfield,  7  Paige  (N.  Y.)  544;  Eagle  Fire  Ins.  Co.  v. 
tCajumet,  2  Edw.  Ch.  (N.  Y.)  127;   2  Jones,  Mortg.  (5th  Ed.)  §  1401. 

.622  Kay  V.  Whitaker,  44  N.  Y.  565;  Michigan  Ins.  Co.  of  Detroit  v.  Brown, 
11  Mich.  265;   Moore  v.  Starks,  1  Ohio  St.  369. 

628  Miller  v.  Thompson,  34  Mich.  10;  Jones  v.  Lapham,  15  Kan.  540;  Stev- 
ens V.  Campbell,  21  Ind.  471. 

624  Swift  V.  Edson,  5  Conn.  532;  Craig  v.  Miller,  41  S.  C.  37,  19  S.  E.  192; 
Baker  v.  Collins,  4  Tex.  Civ.  App.  520,  23  S.  W.  493. 

8  2 a  Watson  v.  Spence,  20  Wend.  (N.  Y.)  200;  Cord  v.  Hlrsch,  17  Wis.  415; 
Travellers'  Ins.  Co.  v.  Patten,  98  Ind.  209;  Clark  v.  Gregory,  87  Tex.  189,  27 
8.  W.  56.  But  not  when  the  deed  is  not  recorded.  Connely  v.  Rue,  148  111. 
207,  35  N.  E.  824;  Oakford  v.  Robinson,  48  111.  App.  270;  Hatfield  v.  Malcolm, 
71  Hun,  51,  24  N.  Y.  Supp.  596. 

6«6  Lockwood  V.  Benedict,  3  Edw.  Ch.  (N.  Y.)  472;    Scarry  v.  Eldrldge,  63 
Ind.  44. 
•«T  Stout  V.  Lye,  103  U.  S.  66;   McPherson  v.  Housel,  13  N.  J.  Eq.  299. 


§    140)  KINDS    OF    FORECLOSURE.  247 

heirs  or  devisees  of  the  owner  of  an  equity  of  redemption,  who  has 
died  seised,  must  be  made  defendants;"^*  and  so  must  legatees 
whose  legacies  are  charges  on  the  mortgaged  premises."**  The  wife 
of  the  mortgagor  must  be  made  a  defendant,  to  cut  off  her  dow- 
gp.  B30  ij^^^  when  she  did  not  join  in  the  mortgage,  she  is  not  a  prop- 
er party,  unless  some  defense  as  to  her  dower  has  arisen  subsequent- 
ly to  the  mortgage. ''^^  But  the  wife  must  be  joined  where  the  mort- 
gage is  on  the  homestead, '^^'^  unless  it  be  for  purchase  money. '^"' 
Subsequent  mortgagees  are  proper,  though  not  necessary,  parties, 
since  they  may  redeem.'^*  And  so  a  subsequent  mortgagee  who 
has  assigned  his  mortgage  for  security  is  a  proper  party. '^^'^  WTiere 
an  assignment  of  the  mortgage  note  carries  the  mortgage  with  it, 
the  assignee  of  the  note  may  be  made  defendant."*^®  On  the  death 
of  a  junior  mortgagee,  his  personal  representative  is  the  proper 
party  to  maJie  defendant. ''^^  Judgment  creditors  having  a  lien  are 
proper  parties,  because  they  may  redeem  if  not  joined,"^*  but  a  gen- 
eral creditor  without  any  lien  cannot  be  joined."*  Prior  mort- 
gagees need  not  be  made  defendants,  though  they  may  be."*"     Ad- 

»«»  Stark  V.  Brown,  12  Wis.  638;  Abbott  v.  Godfrey,  1  Mich.  178;  Richards 
V.  Thompson,  43  Kan.  209,  23  Pac.  106;  Hill  v.  Townley,  45  Minn.  167,  47  N. 
W.  653.     But  see  Wood  v,  Morehouse,  1  Lans.  (N.  Y.)  405. 

B29  McGown  V.  Yerks,  6  Johns.  Ch.  (N.  Y.)  450. 

B80  Foster  v.  Hlckox,  38  Wis.  408;  Wright  v.  Langley,  36  111.  381;  Mills  v. 
Van  Voorhles,  20  N,  Y.  412;  Gibson  v.  Crehore,  5  Pick.  (Mass.)  146.  And  see 
Moomey  v.  Maas,  22  Iowa,  380. 

631  Barr  v.  Vanalstine,  120  Ind.  590,  22  N.  E.  965. 

BS2  Sargent  v.  Wilson,  5  Cal.  504. 

B3S  Amphlett  v.  Hibbard,  29  Mich.  298. 

084  Kenyon  v.  Shreck,  52  111.  382;  Gower  v.  Winchester,  33  Iowa,  303;  Pat- 
tlson  V.  Shaw,  6  Ind.  377;  Jewett  v,  Tomlinson,  137  Ind.  326,  36  N.  B.  1106; 
Williams  V.  Kerr,  113  N.  C.  306,  18  S.  E.  501.  And  see  Rose  v.  Chandler,  50 
111.  App.  421. 

63 B  Dalton  V.  Smith,  86  N.  Y,  176;    Bard  v.  Poole,  12  N,  Y.  495. 

63  8  Burton  t.  Baxter.  7  Blackf.  (Ind.)  297. 

68T  Citizens'  Nat  Bank  v.  Dayton,  116  111.  257,  4  N.  E.  492;  Lockman  r. 
RelUy,  95  N.  Y.  64. 

688  Bralnard  v.  Cooper,  10  N.  Y.  356;   Com.  v.  Robinson  (Ky.)  29  S.  W.  308. 

689  Gardner  v.  Lansing,  28  Hun  (N.  Y.)  413;  Sumner  r.  Skinner,  80  Hun, 
201,  80  N.  Y.  Supp.  4. 

•40  Jerome  v.  McOarter,  94  U.  S.  734;  Strobe  v.  Downer,  13  Wis.  11;  Frost 


248  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch,   9 

verse  claimants  of  the  mortgaged  land  cannot  be  made  parties,  be- 
cause their  claims  to  title  cannot  be  litigated  in  the  foreclosure 
suit.»" 

Smne — Stinct  Foreclosure  and  Decree  of  Sale. 

In  a  few  states  the  original  form  of  decree  in  foreclosure  is  still 
used;  that  is,  unless  the  mortgagor  redeems  within  a  limited  time 
after  the  decree,  the  estate  becomes  absolute  in  the  mortgagee."** 
The  time  allowed  for  such  redemption  is  within  the  discretion  of  the 
court. ''^^ 

But  in  most  states,  instead  of  a  strict  foreclosure,  a  sale  of  the 
mortgaged  land  is  decreed,"**"^  and  the  amount  due  the  mortgagee  is 
paid  him,  while  any  surplus  is  applied  for  the  benefit  of  the  mort- 
gagor, in  paying  off  other  incumbrances  according  to  their  priori- 
ty.''*" Such  a  sale  is  made  by  an  officer  of  the  court,  and  the  man- 
ner of  conducting  it  is  prescribed  by  statute.^*^  However,  before 
such  a  sale  becomes  effective,  it  must  be  confirmed  by  the  court. ''** 

Power  of  Sale. 

It  is  usually  provided  in  a  mortgage  or  deed  of  trust  that  the 
mortgagee  or  trustee,  respectively,  shall,  on  default  of  payment,  have 
power  to  sell  the  mortgaged  premises  without  going  into  court."**" 

V.  Koon,  SO  N.  Y.  428;  Bexar  Bldg.  &  Loan  Ass'n  v.  Newman  (Tex.  Civ,  App.) 
25  S.  W.  461. 

6*1  Summers  v.  Bromley,  28  Mich.  125;  Pelton  v.  Farmin,  18  Wis.  222; 
Banning  v.  Bradford,  21  Minn.  308. 

6*2  2  Jones,  Mortg.  (5th  Ed.)  §§  1538,  1542;  Hitchcock  v.  Banli,  7  Ala.  386; 
Sheldon  v.  Patterson,  55  111.  507;  Caufman  v.  Sayre,  2  B.  Mon.  (Ky.)  202; 
Shaw  V.  Railroad  Co.,  5  Gray  (Mass.)  162;  Hey  ward  v.  Judd,  4  Minn.  483 
(GIL  375);  Woods  v.  Shields,  1  Neb.  453;  Bolles  v.  Duff,  43  N.  Y.  469;  Higgins 
V.  West,  5  Ohio,  554.  But  not  In  others.  Goodenow  v.  Ewer,  16  Cal.  461; 
Smith  V.  Brand,  64  Ind.  427;  Gamut  v.  Gregg,  37  Iowa,  573;  Jaclison  v.  Weav- 
er, 138  Ind.  539,  38  N.  E.  lOG;  Davis  v.  Holmes,  55  Mo.  349;  Winton's  Appeal, 
87  Pa.  St.  77;   Hord  v.  James,  1  Overt.  (Tenn.)  201. 

8*8  Chicago,  D.  &  V.  R.  Co.  v.  Fosdick,  106  U.  S.  47,  1  Sup.  Ct  10;  Ellis  v. 
Leek,  127  111.  60,  20  N.  E.  218. 

B*B  1  stim.  Am.  St  Law,  §  1925  C. 

B*6  1  Stim.  Am.  St.  Law,  §  1926;  2  Jones,  Mortg.  (5th  Ed.)  i  1684. 

B4T  1  Stim.  Am.  St  Law,  §  1925  I-O;  2  Jones,  Mortg.  (5th  Ed.)  §  160a 

B*8  2  Jones,  Mortg.  (5th  Ed.)  §  1637. 

»*•  1  Stim.  Am.  St  Law,  §  1924  A. 


§    140)  KINDS    OF    FOBECLOSURE.  249 

In  some  states,  however,  such  provisions  are  not  valid.'''"'  The  ex- 
istence of  a  power  of  sale  does  not  take  away  the  right  to  fore- 
close."* Such  a  power  passes  with  an  assignment  of  the  mort- 
gagej^"^  but  not  to  an  assignee  of  the  beneficiary  under  the  deed  of 
trust.  In  the  latter  case  it  remains  in  the  trustee,  who  must  exe- 
cute it  for  the  benefit  of  the  assignee.**"'  The  one  holding  the  legal 
title  under  the  mortgage  is  the  one  who  should  sell  under  the  pow- 
gj.  564  rp^g  manner  of  conducting  the  sale  is  usually  provided  for 
in  the  instrument  creating  the  power,  and  is  in  many  states  regu- 
lated by  statute."^"  In  the  absence  of  a  statutory  provision,  or  di- 
rection in  the  power,  the  sale  need  not  be  in  parcels.'"'  A  mort- 
gagor cannot  revoke  a  power  of  sale,  nor  does  his  death  have  that 
effect."""^  The  power  of  sale  is  suspended  by  a  bill  to  redeem 
brought  by  the  mortgagor,""®  but  not  when  filed  by  a  subsequent 
mortgagee.""®  The  surplus  is  distributed  in  the  same  way  as  when 
a  sale  is  by  decree  of  court.""" 

8a/me — PurcJiass  h/  the  Mortgagee  at  the  Sale. 

At  a  sale  under  a  power,  the  mortgagee  is  not  usually  allowed  to 
ber'.ome  the  purchaser,  unless  permission  is  given  in  the  mort- 
gage."'*     Nor  can  he  become  a  purchaser  through  an  agent,  or  by 

•BO  1  stim.  Am,  St.  Law,  §  1924  D. 

«oi  Morrison  v.  Bean,  15  Tex.  267;   Utermehle  v.  McGreal,  1  App.  D.  C.  859. 

862  Bush  V.  Sherman,  80  lU.  160. 

663  AYhittelsey  t.  Hughes,  39  Mo.  13;  Johnson  v.  Johnson,  27  S.  C.  309,  3  S. 
B.  606;  Western  Maryland  Railroad  Land  &  Imp.  Co.  v.  Goodwin,  77  Md. 
271,  26  Atl.  319;   Banick  v.  Horner,  78  Md.  253,  27  Atl.  1111. 

664  Miller  v.  Clark,  56  Mich.  337,  23  N,  W.  35;  Backus  v,  Burke,  48  Minn. 
260,  51  N.  W.  284. 

665  Notice  to  the  mortgagor  and  the  public  Is  nearly  always  provided  for. 
1  Stim.  Am.  St.  Law,  §  1924  B. 

66«  Lovelaud  v.  Clark,  11  Colo.  265,  18  Pac.  544;  Singleton  v.  Scott,  11  Iowa, 
589;   Gray  y.  Shaw,  14  Mo.  341. 

B6T  ReUly  V.  Phillips,  4  S.  D.  604,  57  N.  W.  780;  Schwab  Clothing  Co.  t. 
Claunch  (Tex.  Civ.  App.)  29  S.  W.  922.  Contra  In  Illinois  by  statute.  1 
Stim.  Am.  St.  Law,  §  1924  C.  And  see  WUliama  v.  Washington,  40  S.  a  457, 
19  S.  E.  1. 

BBS  2  Jones,  Mortg.  (5th  Ed.)  {  1797. 

6  58  Holland  v.  Bank,  16  R.  I.  734,  19  Atl.  654. 

B60  1  stim.  Am.  St.  Law,  §  1924  E;  2  Jones,  Mortg.  (5th  Ed.)  §  1927. 

B61  Griffin  v.  Marine  Co.,  52  111.  130;   Jones  v.  Pullen,  115  N.  C.  405,  20  S.  B. 


250  ESTATES    AS    TO    QUALITY MORTGAGES.  (Ch.   9 

other  indirect  means.'"  A  purchase  by  the  mortgagee,  however, 
is  only  voidable,  and  not  void."*"  Nor  can  a  trustee  who  sells  the 
premises  under  a  power  of  sale  in  a  deed  of  trust  become  the  pur- 
chaser,"* but  the  beneficiary— that  is,  the  mortgagee— may  pur- 
chase."" The  mortgagee  is  allowed  to  purchase  at  foreclosure 
sale  under  decree  of  court. ^" 

624;  Garland  v.  Watson,  74  Ala.  323;  Lovelace  v.  Hutchinson  (Ala.)  17  South. 
623.     But  see  Hambrick  v.  Security  Co..  100  Ala.  551,  13  South.  778. 

668  Nichols  V.  Otto,  132  111.  91,  23  N.  E.  411;  Harper  v.  Ely,  56  111.  179; 
Tipton  V.  Wortham,  93  Ala.  321,  9  South.  596;   Joyner  v.  Farmer,  78  N.  C. 

196. 

B«s  Cunningham  v.  Railroad  Co.,  156  U.  S.  400,  15  Sup.  Ct.  861;  Burns  v. 
Thayer,  115  Mass.  89;  Mulvey  v.  Gibbons,  87  111.  367;  Connolly  v.  Hammond, 
r>l  Tex.  635;    Averltt  v.  Elliot,  109  N.  C.  560,  13  S.  E.  785. 

B«*  Lass  V.  Sternberg,  50  Mo.  124.  Cf.  Stephen  v.  BeaU,  22  Wall.  329;  Felton 
V.  Le  Breton.  92  Oal.  457,  28  Pac.  490. 

88 B  Easton  v.  Bank,  127  U.  S.  532,  8  Sup.  Ct.  1297. 

B8«  MaxweU  v.  Newton,  65  Wis.  261,  27  N.  W.  31;  Ramsey  v.  Merrlam,  6 
Minn.  168  (GIL  104). 


i   141)  EQUITABLE    ESTATES.  251 

CHAPTER   X. 

EQUITABLE  ESTATES. 

141.  Legal  and  Equitable  Estates. 

142.  Use  or  Trust  Defined. 
143-144.    The  Statute  of  Uses. 

145.  When  the  Statute  does  not  Operate. 

146.  Classification  of  Trusts. 

147.  Express  Trusts. 

148-149.  Executed  and  Executory  Trusts. 

150-151.  Creation  of  Express  Trusts. 

152.  Implied  Trusts. 

15a.  Resulting  Trusts. 

154.  Constructive  Trusts. 

155-1515.  Incidents  of  Equitable  Estates. 

157-158.  Charitable  Trusts. 

LEGAL  AND  EQUITABLE  ESTATES. 

141.  The  various  kinds  of  estates  as  to  quantity  and  qual- 
ity may  be  either 

(a)  Legal,  or 

(b)  Eqiiitable. 

We  now  come  to  a  new  principle  upon  which  to  classify  estates, 
namely,  their  leg:al  or  equitable  character.  So  far  our  attention  has 
been  occupied  with  legal  interests,  though  equitable  estates  have 
been  mentioned  in  treating  of  curtesy,*  dower,*  homestead,^  and 
mortgages.*  It  will  now  be  seen  that  the  different  estates,  as  to 
quantity  and  quality,  may  any  of  them  be  held  by  a  title  which  is 
recognized  only  in  courts  of  equity.'  And  some  estates  are  possible 
under  equitable  limitations  which  cannot  be  created  at  common 
law;  these  are  estates  which  defeat  a  preceding  estate,  or  spring  into 
existence  without  a  preceding  freehold  to  support  them.'     Estates 

1  Ante,  p.  73.  «  Ante,  p.  83.  »  Ante,  p.  112.  *  Ante,  p.  ISO. 

•  On  the  whole  subject  of  this  chapter,  see  Fetter,  Eq.  c  8. 

•  See  ante,  p.  177,  note  39,  and  post,  pp.  284,  299, 


252  EQUITABLE    ESTATES.  (Ch.   10 

which  are  recognized  by  the  common  law  are  called  'legal  estates." 
Estates  which  owe  their  existence  to  courts  of  equity  are  called 
"equitable  estates." 


USE  OR  TRUST  DEFINED. 

142.  A  use  or  trust  is  an  equitable  right  to  the  beneficial 
enjoyment  of  an  estate,  the  legal  title  to  -which  is 
held  by  another  person. 

At  common  law  there  were  many  restraints  on  the  alienation  of 
real  property  which  impeded  its  full  enjoyment.  Estates  were  sub- 
ject to  escheat  and  forfeiture  for  treason.  Statutes  of  mortmain 
had  been  passed,  which  prevented  lands  from  being  conveyed  to  re- 
ligious corporations,  and  other  restraints  existed  which  prevented 
land  becoming  an  article  of  commerce.  In  order  that  these  burdens 
might  be  avoided,  the  practice  of  conveying  lands  to  uses  was  intro- 
duced; that  is,  land  would  be  conveyed  to  a  person  in  whom  the 
grantor  had  confidence,  for  the  use  of  the  grantor  or  another,  and 
would  by  such  grantee  be  disposed  of  or  used  according  to  the  wish- 
es of  the  grantor.  The  clergy  were  probably  the  first  to  employ  this 
method  of  transferring  and  holding  land.  At  first  there  were  no 
means  by  which  the  grantor  could  compel  the  execution  of  the  con- 
fidence thus  imposed,  but  later  the  chancellors,  who  were  ecclesi- 
astics, gave  a  subpcena  in  chancery  by  which  such  confidences  were 
enforced.^  Although  in  courts  of  law  only  the  legal  estate  and  title 
were  recognized,  yet  in  equity  the  person  entitled  to  the  beneficial  in- 
terest was,  for  all  purposes,  recognized  as  owner.'  In  this  way  a 
dual  system  of  ownership  arose,  by  the  legal  title  to  the  land  being 
held  by  one  person,  and  all  of  the  beneficial  rights  arising  out  of  it 
belonging  to  another.  These  equitable  interests  were  held  free 
from  most  of  the  burdens  attached  to  common-law  estates.  For  ex- 
ample, they  could  be  conveyed  without  a  feoffment,  or  could  be  dis- 
posed of  by  will,  which  was  not  true  of  a  legal  estate.® 

T  See  Dig.  Hist  Real  Prop.  (4th  Ed.)  313;  Anon.,  Y.  B.  14  Hen.  VIII.  4  pi.  5. 
«  2  Washb.  Real  Prop.  (5th  Ed.)  409. 

»  2  Pol.  &  M.  Hist  Eng.  Law,  226;  Burgess  v.  Wheate,  1  W.  Bl.  123;   Chud« 
leigh's  Case,  1  Ck>ke,  120a, 


|§    143-144)  THE    STATUTE    OF    USES.  253 

THE  STATUTE  OF  USES. 

143.  The  statute  of  uses  enacted  that  whenever   any  per- 

son should  be  seised  of  any  lands  to  the  use,  confi- 
dence, or  trust  of  another,  the  latter  should  be 
deemed  in  lawful  seisin  of  a  legal  estate  of  a  like 
quantity  and  quality  as  he  had  in  the  use. 

144,  The  statute  of  uses  is  in  force  in  many  of  the  states 

of  the  Union  (p.  254). 

Although  many  convenient  purposes  were  served  by  the  practice 
of  conveying  lands  to  uses,  on  the  other  hand  it  had  a  tendency  to 
make  titles  uncertain,  and  was  very  unpopular  with  the  great  land- 
owners of  England,  because  they  were  deprived  of  many  of  the  in- 
cidents attached  to  feudal  estates.^**  A  number  of  statutes  were 
passed,  attempting  to  prevent  these  results,  but  they  proved  inef- 
fectual. Finally  the  famous  statute  of  uses^^  was  enacted,  which 
provided  "that  where  any  person  or  persons  stand,  or  be  seized,  or 
at  any  time  hereafter  shall  happen  to  be  seized  of  and  in  any  honours, 
castles,  manors,  lands,  tenements,  rents,  services,  reversions,  re- 
mainders, or  other  hereditaments  to  the  use,  confidence,  or  trust  of 
any  other  person  or  persons  or  of  any  body  politick  by  reason  of  any 
bargain,  sale,  feoffment,  fine,  recovery,  covenant,  contract,  agree- 
ment, will  or  otherwise,  by  any  manner  means  whatsoever  it  be, 
that  in  every  such  case,  all  and  every  such  person  and  persons 
♦  *  *  shall  from  henceforth  stand  and  be  seised,  deemed,  and 
adjudged  in  lawful  seisin,  estate,  and  possession  of  and  in  the  same 
honours,  castles,  manors,"  etc.,  "*  *  *  to  all  intents,  construc- 
tions and  purposes  in  the  law,  of  and  in  such  like  estates  as  they 
had  or  shall  have  and  in  use,  trust  or  confidence  of  or  in  the  same."  ^^ 
The  statute  contained  other  provisions,  all  intended  to  produce  the 
effect  that,  whenever  a  person  was  entitled  to  the  beneficial  interest 

10  The  Inconveniences  arising  from  lands  being  conveyed  to  uses  are  recited 
In  the  preamble  of  the  statute  of  uses.    See,  also,  Lloyd  v.  Spillet,  2  Atk.  148. 

11  27  Hen.  VIII.  c.  10. 

12  Broughton  v.  Langley,  2  Salk.  679;  Lord  Altiham  v.  Earl  of  Anglesey, 
Gilb.  Cas.  16.  The  possession  passes  immediately.  Anon.,  Cro.  EIlz.  46. 
Heelis  v.  Blaln,  18  C.  B.  (N.  S.)  90.    But  see  Orme's  Case,  L.  R.  8  C.  P.  281. 


254  EQUITABLE    ESTATES.  (Ch.    10 

in  land,  the  legal  title  should  be  vested  in  him.  An  exception  waa 
made,  however,  so  that  wives  on  whom  a  jointure  had  been  settled 
would  not  be  entitled  to  dower  in  the  equitable  estates  of  their  hus- 
bands which  should  be  executed  by  the  statute.^'  The  statute  of 
uses  had  a  very  important  effect  on  conveyancing,  because,  as  we 
shall  see  later, ^*  it  became  possible  to  convey  the  legal  title  to  lands 
by  methods  unknown  to  the  common  law.^* 

Statute  of  Uses  m  the   United  States. 

The  statute  of  uses  has  been  re-enacted  in  a  nimiber  of  our  states, 
either  in  terms  or  in  substance,  and  in  some  others  it  is  held  to  exist 
as  part  of  the  common  law.^'  Other  states,  however,  following  the 
lead  of  New  York,  have  abolished  all  uses  and  trusts,  except  in  cer- 
tain specified  cases  permitted  by  the  statutes. ^^  These  are:  (1) 
Trusts  implied  by  law,  for  the  prevention  of  fraud;  (2)  active  trusts, 
where  the  trustee  is  clothed  with  some  actual  power  of  disposition 
or  management,  w^hich  cannot  be  properly  exercised  without  giving 
him  the  legal  estate  and  actual  possession. 

SAME— WHEN  THE  STATUTE  DOES  NOT  OPERATK 

145.  The  statute  of  uses  was  held  not  to  apply  to, — 
\j  (a)  Chattel  interests. 

yCb)  Future  uses. 

v/(c)  Active  uses. 

■^  (d)  Estates  for  the  separate  use  of  married  women. 

V(e)  A  use  upon  a  use. 
(f )  Trusts  created  by  operation  of  law. 

According  to  the  wording  of  the  statute  of  uses,  it  was  held  that 
three  things  were  necessary  for  its  operation:    There  must  be  (1)  a 

18  27  Hen.  VIII.  c.  10,  §  6. 
14  Post,  p.  409. 

16  Lutwich  v.  Milton,  Cro.  Jac.  604;   Roe  v.  Tranmer,  2  Wlls.  75.    See,  also, 
Sammes'  Case,  13  Coke,  54. 

16  2  Wa&hb.  Real  Prop.  (5th  Ed.)  p.  465.    The  statute  of  uses  Is  not  In  force 
In  Ohio.    Gray,  Perp.  p.  45,  §  68, 

17  1  Stlm.  Am.  St.  Law,  §  1703.    For  trusts  not  within  the  statute,  see  Coweu 
V.  RinaJdo,  82  Hun,  479,  31  N.  Y.  Supp.  554. 


§    145)  WHEN    THE   STATUTE    OF    OSES    DOES    NOT   OPERATE.  255 

person  seised  to  a  use;  (2)  a  cestui  que  use  in  esse;  (3)  a  use  in  esse." 
The  use,  however,  might  be  either  in  possession  or  in  expectancy.^* 
The  cases  in  which  the  statute  of  uses  was  held  not  to  operate  to 
vest  the  legal  title  in  the  beneficiary,  enumerated  in  the  black-letter 
text,  rendered  the  statute  practically  inoperative.  It  was  held  that 
chattel  interests  were  not  within  the  statute,  because  there  could  be 
no  seisin  of  such  interests,  and  the  provision  of  the  statute  was  "that 
where  any  person  or  persons  stand  or  be  seised."  ^^  Nor  did  the 
statute  operate  upon  future  uses,^^  but  such  uses  would  be  executed 
by  the  statute  as  soon  as  they  became  vested.'"  A  distinction  was 
made  by  the  courts  between  active  and  passive  uses;  that  is,  where 
the  trustee  had  no  duties  to  perform,  but  merely  held  the  legal  title 
for  the  benefit  of  the  cestui  que  use,  the  statute  was  permitted  to 
operate.^ ^  But  when  anything  was  to  be  done  by  the  trustee  in  rela- 
tion to  the  trust  property,  such  as  collecting  the  rents  and  profits,  or 
selling  the  property,  the  statute  did  not  operate,  because  the  trustee 
could  not  perform  these  duties  unless  he  held  the  title  to  the  land.^* 
The  former  was  called  a  passive,  and  the  latter  an  active,  use.  Yery 
slight  duties  imposed  on  the  trustee  were  sufficient  to  prevent  the 
operation  of  the  statute. '^'^  Lands  conveyed  to  the  separate  use  of  a 
married  woman  are  not  within  the  scope  of  the  statute,  because,  if 
the  legal  title  should  vest  in  her,  her  husband  would  become  entitled 
to  the  control  of  the  estate,  thus  producing  an  effect  contrary  to  the 
intention   with   which   such   uses   are   created.-^      Under   statutes 

18  Wltham  V.  Brooner,  63  111.  344;   Brent's  Case,  2  Leon.  14. 

19  2  Washb.  Real  Prop.  (5th  Ed.)  434. 

2  0  Merrill  v.  Brown,  12  Pick.  (Mass.)  216;  Galliers  v.  Moss,  9  Barn.  &  C. 
267;   Hopliins  v.  Hopliins,  1  Atk.  581. 

21  Wyman  v.  Brown,  50  Me.  139;  Proprietors  of  Town  of  Shapleigh  v.  Pils- 
bury,  1  Me.  271;  Savage  v.  Lee,  90  N.  C.  320. 

2  2  See  Chudleigh's  Case,  1  Coke,  120a,  and  cases  In  note  21  supra. 

28  Posey  v.  Cook,  1  Hill  (S.  C.)  413;  Ware  v.  Richardson,  3  Md.  505;  Sul- 
livan V.  Chambers,  18  R.  I.  799,  31  Atl.  167. 

2*  Fay  V.  Taft,  12  Cush.  (Mass.)  448;  Barnett's  Appeal,  46  Pa.  St.  392;  Gott 
V.  Cook,  7  Paige  (N.  Y.)  521;  Morton  v.  Barrett,  22  Me.  257;  Posey  v.  Cook,  1 
Hill  (S.  C.)  413;   Schley  v.  Lyon,  6  Ga.  530. 

2  0  Morton  v.  Barrett,  22  Me.  257.  As  soon  as  the  active  duties  of  the  trustee 
are  performed,  the  statute  vests  the  legal  estate  In  the  cestui  que  trust.  Feig- 
ner V.  Hooper,  SO  Md.  262,  30  Atl.  911. 

«6  Steacy  v.  Rice,  27  Pa.  St  75;   PuUen  v.  RIanhard,  1  Whart.  (Pa.)  514; 


256  EQUITABLE    ESTATES.  (Ch.    10 

which  give  a  married  woman  the  same  right  of  disposition  over  her 
property  as  a  feme  sole,  the  reason  for  this  rule  would  not  obtain, 
and  the  legal  estate  would  vest  in  her."  And  without  such  stat- 
utes, if  a  married  woman  conveyed  her  equitable  estate,  the  statute 
would  execute  the  legal  title  in  her  assignee.^* 

The  most  important  ruling  of  the  courts  on  the  statute  of  uses, 
however,  was  in  Tyrrell's  Case,^'''  about  20  years  after  the  statute  was 
passed,  in  which  it  was  held  that  a  use  upon  a  use  was  not  within 
the  terms  of  the  statute;  that  is,  where  an  estate  was  conveyed  to 
A.  for  the  use  of  B.  for  the  use  of  C.  Before  the  enactment  of  the 
statute,  under  such  a  conveyance,  the  use  to  C.  would  be  void.  A 
use  could  not  be  engendered  of  a  use,  it  was  said.  And  after  the 
statute  it  was  held  that  the  legal  title  would  be  executed  in  B.,  but 
that  then  the  force  of  the  statute  would  be  exhausted,  and  B.  would 
hold  the  estate  for  the  benefit  of  C.«°  In  this  way  the  necessity 
arose  again  for  the  protection  of  the  beneficiary  by  the  court  of 
chancery.  In  other  words,  the  courts  of  law  treated  the  first  use  as 
executed  by  the  statute,  and  the  second  as  void.  Such  a  construc- 
tion evidently  defeated  the  intention  of  the  grantor,  and  consequent- 
ly equity  interposed,  and  gave  effect  to  the  second  use.  Therefore 
all  that  was  necessary  to  avoid  the  effect  of  the  statute  was  to  add 
the  words,  "to  the  use  of."  ^^  The  statute  of  uses  does  not  operate 
upon  beneficial  interests  created  by  operation  of  law."  The  equita- 
ble estates  upon  which  the  statute  of  uses  was  held  not  to  operate 
are  called  "trusts,"  **  and  their  incidents  are  the  same  as  those  of 

Bush's  Appeal,  33  Pa,  St  85;  Nevll  v.  Saunders,  1  Vem.  415;  Harton  v.  Har- 
ton,  7  Term  R.  653.    But  see  Ware  v.  Richardson,  3  Md.  504. 

2T  Bratton  v.  Massey,  15  S.  C.  277;  Sutton  v.  Aikea,  62  Ga.  733;  Bayer  v. 
Cockrill.  3  Kan.  282. 

2  8  Leaycraft  v.  Hedden,  4  N.  J.  Eq.  512;  Imlay  v.  Huntington^  20  Oonn,  146; 
Cooke  V.  Husbands,  11  Md.  492. 

2  9  Dyer,  155a. 

80  And  see  Doe  v.  Passingham,  6  Barn.  &  C.  305.  But  see  Peacock  v.  East- 
land, L.  R.  10  Eq.  17. 

31  Croxall  V.  Shererd,  5  Wall.  2G8;  Jackson  v.  Gary,  16  Johns,  (N.  Y.)  302; 
Jackson  v.  Myers,  3  Johns.  (N.  Y.)  388;  Guest  v.  Farley,  19  Mo.  147.  This 
rule  has  been  abolished  by  statute  in  Georgia,  and  the  use  Is  executed  to  the 
last  beneficiary.    See  1  Stim.  Am.  St  Law,  §  1701;  Code,  Ga,  1882,  §  2315. 

•  «  See  post  p.  265. 

«8  Before  the  statute  of  uses  the  term  "trust"  was  applied  to  equitable  es- 


§    146)  CLASSIFICATION    OF    TRUSTS.  257 

nses  before  the  enactment  of  the  statute,  and  the  rights  and  dnties 
of  the  owners  of  the  two  classes  of  estates  will  be  treated  of  togeth- 
er in  this  chapter. 

CLASSIFICATION  OF  TBUSTS. 

146.  Trusts,  according  to  the  method  of  their  creation,  are 
divided  into 

(a)  Express  trusts  (p.  258). 

(b)  Implied  trusts  (p.  264). 

A  great  deal  of  confusion  exists  in  the  books  and  cases  on  the 
subject  of  the  classification  of  trusts.  This  has  arisen  principally 
from  a  loose  and  incorrect  use  of  the  word  "implied."  Some  courts, 
as  well  as  text  writers,  use  the  words  ''implied,"  "resulting,"  and 
"constructive,"  indifferently,  while  in  fact  both  resulting  and  con- 
structive trusts  are  implied  trusts;  that  is,  they  are  implied  or  cre- 
ated by  operation  of  law.  On  the  other  hand,  all  trusts  which  can 
properly  be  called  implied  are  either  constructive  or  resulting.  The 
term  "implied,"  however,  has  often  been  used  to  designate  certain 
express  trusts,  in  the  creation  of  which  the  language  of  the  settlor  is 
obscure,  and  his  intention  has  to  be  inferred  by  the  courts  from  the 
words  used.  These  trusts  can  in  no  proper  sense  be  tei-med  im- 
plied, because  the  only  question  that  arises  is  one  of  construction. 
It  is  sufficient  to  call  attention  at  this  point  to  the  confusion  which 
has  arisen  from  the  improper  use  of  the  words.  The  definitions  and 
distinctions  between  the  different  kinds  of  trusts  will  appear  as  they 
are  treated  of  separately.  In  examining  the  cases  ft  must  be  borne 
in  mind  that  the  language  of  the  courts  in  many  cases  cannot  be  re- 
lied upon  in  determining  the  kind  of  trust  in  question. 

tates  created  for  a  limited  period,  while  those  of  indefinite  duration  were  called 
"uses."    2  Washb.  Real  Prop.  (5th  Ed.)  414. 

BSAL  PBOP.  —17 


258  BQUITABLE    ESTATES.  (CSl.   10 


EXPRESS  TRUSTS. 

147.  Express  trusts  are  those   which  are  created  by  act 

of  the  parties.     They  are  either 

(a)  Executed,  or 

(b)  Executory. 

SAME— EXECUTED  AND  EXECUTORY  TRUSTS. 

148.  An   executed  trust  is  one  in  ■which  the  terms   and 

limitations  are  dejOnitely  and  completely  declared 
by  the  instrument  creating  it. 

149.  An  executory  trust  is  one  in  which  the  limitations 

are  not  completely  declared,  but  only  an  outline 
given,  by  w^hich  the  trustee  is  to  declare  the  final 
limitations  of  the  trust  estates. 

Under  an  executed  trust,  the  intention  of  the  settlor  must  be 
taken  from  the  instmment  creating  the  trust,**  while  in  the  case  of 
an  executory  trust  the  terms  and  limitations  of  the  trust,  as  they 
are  finally  declared,  are  to  be  determined,  not  only  by  the  words 
used,  but  by  the  circumstances  surrounding  the  parties.''  A  trust 
is  executed  when  the  instrument  creating  it  contains  all  the  terms  of 
the  trust,  and  is  in  its  final  form, — nothing  remaining  to  be  done  but 
to  carry  out  the  terms  as  therein  declared.  But  in  an  executory 
trust  it  is  intended  that  there  shall  be  a  further  and  more  definite 
declaration  of  the  terms  and  limitations  of  the  trust,  and  the  instm- 
ment creating  an  executory  trust  is  more  in  the  nature  of  a  mem- 
orandum containing  directions  according  to  which  the  trust  is  to  be 
completely  declared.'* 

8*  Wright  V.  Pearson,  1  Eden,  125;  Austen  v.  Taylor,  Id.  361;  Jervoise  v. 
Duke  of  Northumberland,  1  Jac  &  W.  559. 

3  5  Austen  v.  Taylor,  1  ^Eden,  361;  Neves  v.  Scott,  9  How.  196;  Cushins  v. 
Blake,  30  N.  J.  Eq.  6S9;  Tallman  v.  Wood,  26  Wend.  (N.  Y.)  9. 

»•  Wright  V.  Pearson,  1  Eden,  125;  Jerroise  v.  D\ike  of  Northumberland,  1 
Jac  &  W.  559.    Executoiy  trusts  are  closely  applied  to  powers.    See  post,  pu 

3oa 


§§   148-149)  EXECUTED    AND    EXECUTORY    TRUSTS.  259 

Executory  trusts  are  special  or  active  trusts  directing  the  trustee 
to  settle  or  dispose  of  the  land  for  the  estates  and  interests  required 
by  the  trust.  They  are  so  called  because  they  have  to  be  executed  by 
a  deed  conveying  the  land  for  the  estates  and  limitations  intended, 
as  distinguished  from  trusts  directing  the  trustee  to  hold  the  prop- 
erty upon  trusts  then  executed,  in  the  sense  of  being  then  perfectly 
limited  and  defined.  Executory  trusts  are  fulfilled  and  discharged 
by  the  execution  of  a  deed  in  conformity  with  the  directions  of  the 
trust  Executory  trusts  are  here  distinguished,  as  regards  the  lim- 
itation of  estates,  by  admitting  of  an  exceptional  construction  of 
the  limitations  expressed.  They  are  often  expressed  in  compendi- 
ous terms  by  way  of  instructions  for  the  limitations  directed  to  be 
made,  without  setting  out  the  limitations  at  length,  as  by  directing 
or  agreeing  that  property  shall  be  settled  "in  strict  settlement,"  "en- 
tailed," settled  "with  usual  and  proper  powers,"  or  the  like;  in  which 
cases  the  construction  consists  in  developing  the  limitations  in- 
volved in  such  expressions  in  the  form  best  suited  to  carry  out  the 
general  intention  of  the  trust.  And,  even  where  an  executory  trust 
is  expressed  in  technical  terms  of  limitation,  the  terms  are  not  nec- 
essarily construed  with  the  same  strictness  as  is  applied  to  ordinary 
legal  limitations;  but,  having  regard  to  the  directory  character  of 
the  trust,  the  technical  meaning  is  hdd  subordinate  to  the  general 
object  required  to  be  carried  out.'^ 

The  two  principal  classes  of  executory  trusts  are  those  arising 
under  contracts  for  marriage  settlements,  and  under  trusts  declared 
in  wills.  In  the  former  the  courts  presume  tliat  the  intention  in 
creating  the  trust  was  to  provide  for  the  offspring  of  the  maiTiage, 
and  construe  the  terms  accordingly;  but  in  trusts  arising  under  wills 
no  such  intention  can  be  presumed.''  Most  of  the  cases  of  exe- 
cutory trusts  arise  under  limitations  calling  for  a  consideration  of 
the  rule  in  Shelley's  Case,  which  will  be  considered  in  another 
place.'* 

3  7  Tallman  v.  Wood,  26  Wend.  (N.  Y.)  9.  McElroy  y.  McElroy,  113  Mass,  509; 
Cashing  v.  Blake,  30  N.  J.  Eq.  689;   Wight  v.  Leigh,  15  Ves.  564, 

s8  Neves  v.  Scott,  9  How,  196;  Gause  v.  Hale,  2  Ired,  Eq.  (N.  C.)  241;  Smith 
V.  Maxwell,  1  HiU  (S.  C.)  101;  Green  v.  fiumph,  2  HiU  (S.  C)  1;  Carroll  T. 
Eenich,  7  Smedes  &  M.  (Miss.)  798. 

«»  See  post,  p.  295. 


260  KQDITABLK    ESTATES,  (Ch.    10 


SAME— CREATION  OF  EXPRESS  TBTTSTS. 

160.  An  express  tmst  may  be  created  by  any  lang^nage 
which  shows  an  intention  to  create  a  trust,  and 
"which  snf&ciently  designates  the  property,  the  ben- 
eficiary, and  the  terms  of  the  trust.  Under  the 
statute  of  frauds,  an  express  trust  cannot  be  created 
by  paroL 

151.  The  parties  to  the  creation  of  a  trust  are, — 

(a)  The  feoffor,  or  creator. 

(b)  The  feoffee,  or  trustee,  who  holds  the  legal  title, 

(c)  The  cestui  que  trust,  or  beneficiary. 

The  creation  of  an  express  trust  is  a  mere  matter  of  conveyan- 
cing. And  being  a  conveyance,  rather  than  a  contract,  no  consider- 
ation is  necessary  to  support  an  express  trust.*"  A  mere  contract 
to  create  a  trust  will  not  be  enforced,  in  the  absence  of  a  considera- 
tion. Some  cases,  however,  hold  that  such  an  agreement  will  be 
enforced  in  favor  of  a  wife  or  child,  though  not  for  other  relatives.** 

The  presence  or  absence  of  consideration,  however,  plays  an  im- 
portant part,  as  will  be  seen  when  resulting  trusts  are  consid- 
ered. For,  if  the  legal  title  is  conveyed  to  one  who  pays  no  con- 
sideration, a  presumption  may  arise  that  such  grantee  was  not  in- 
tended to  take  the  beneficial  interest.** 

Any  real  property  may  be  held  in  trust.*'     The  requirements  as  to 

40  Bunn  v.  Wlnthrop,  1  Johns.  Ch.  (N.  Y.)  329;  Ownes  v.  Ownes,  23  N.  J. 
Eq.  60;  Massey  v.  Huntington,  118  UL  80,  7  N.  E.  269;  Branson  v.  Henry,  140 
Ind.  455,  39  N-  E.  256;  Anon.,  Brooke,  89,  But  see  Beeman  v.  Beeman,  88 
Hun,  14,  34  N.  Y.  Supp.  484;  HamUton  v.  Downer,  152  IlL  G51,  38  N.  E.  733. 
The  instrameat  of  creation  must  be  executed  and  delivered.  Grovin  v.  De 
Miranda,  9  Misc.  Rep,  684,  30  N.  Y.  Suj^.  550, 

*i  llayes  v.  Kershow,  1  Sandf.  Ch.  (N.  Y.)  258;  Bunn  v.  Winthrop,  1  Johns. 
Ch.  (N.  Y.)  329;    Buford  v.  McKee,  1  Dana  (Ky.)  107. 

*a  See  poet,  p.  267. 

*3  L  Perry,  Tni«ts  (4th  Ed.)  §§  67-69;  2  Washb.  Real  Prop.  (5th  Ed.)  p.  416. 
But  a  trust  cannot  be  created  in  a  mortgage,  where  it  is  only  a  lien,  though 
there  may  be  a  trust  in  the  mortgage  debt.  Merrill  v.  Brown,  12  Picli.  (Mass,) 
21& 


§§    150-161)  CREATION    OF    EXPRESS    TRUSTS.  25 1 

description  of  the  property  conveyed,  the  designation  of  the  feoffee 
and  of  the  cestui  que  trust,  etc.,  are  matters  of  conveyancing,  and 
will  be  discussed  in  a  subsequent  chapter. 

Limitation  of  Trustee's  Estate. 

In  limiting  the  legal  estate  to  a  trustee,  the  strict  requirements 
as  to  the  use  of  technical  words  in  conveying  legal  estates  are  re- 
laxed, and  the  trustee  is  held  to  take  an  estate  sufficient  to  carry 
out  the  purposes  of  the  trust.**  For  example,  if  the  cestui  que  trust 
is  given  the  beneficial  interest  iu  fee,  and  only  a  life  estate  is  given 
to  the  trustee,  the  latters  estate  will  be  enlarged  to  a  fee,  if  it  is  . 
necessary  to  carry  out  the  settlor's  intention.*'*  On  the  other  hand, 
the  estate  of  the  trustee  will  be  cut  down  to  what  is  necessary  to 
enable  him  to  carry  out  the  trust.  In  most  cases  this  would  be  ac- 
complished by  the  statute  of  uses  executing  the  legal  estate  in  the 
beneficiary  as  soon  as  the  trustee's  active  duties  were  completed.*^ 

Precatory   Words. 

In  the  creation  of  an  express  trust,  it  is  not  necessary  to  use  the 
words  "use.  confidence,  or  trust,"  or  in  fact  any  technical  expres- 
sion.*^      It  is  sufficient  if  from  the  whole  instrument  an  intention^ 
appears  to  create  a  trust.*  ^      In  fact,  the  intention  of  the  settlor - 
may  be  shown  by  what  are  called  "precatory  words";  that  is,  by  suchi 
expressions  as  "desire,"  "request,"  "entreat,"  "trust  and  confide."  *^^' 

*♦  Neilson  v.  Lagow,  12  How.  98;  Fisher  v.  Fields,  10  Johns.  (N.  Y.)  495; 
Gould  V.  Lamb,  11  Mete.  (Mass.)  84;  New  hall  v.  Wheeler,  7  Mass.  189;  Angell 
V.  Rosenbury,  12  Mich.  241.     But  see  CJooper  v.  Franklin,  Cro.  Jac.  400. 

*^  Newhall  v.   Wheeler,  7  Mass.  189. 

*6  Norton  v.  Norton,  2  Sandf.  (N.  Y.)  296;  Bush's  Appeal,  33  Pa.  St.  85; 
Renziehausen  v.  Keyser,  48  Pa.  St.  351.  But  see  Lewis  v.  Rees,  3  Kay  &  J. 
132. 

*7  Wright  V.  Douglass,  7  N.  Y.  564;  Raybold  v.  Ray  bold,  20  Pa.  St  308; 
Ready  v.  Kearsley,  14  Mich.  215;  White  v.  Fitzgerald,  19  Wis.  480;  Zuver  v.' 
Lyons,  40  Iowa,  510. 

*8  Toms  v.  Williams,  41  Mich.  552,  2  N.  W.  814;  Taft  v.  Taft,  130  Mass. 
461;  McElroy  v.  McElroy,  113  Mass.  509;  Kintner  v.  Jones,  122  Ind.  148, 
23  N.  E.  701. 

*»  Warner  v.  Bates,  98  Mass.  274;  Knox  v.  Knox,  59  Wis.  172,  IS  N.  W.  155; 
Webster  v.  Morris,  66  Wis,  366,  28  N.  W.  353;  McRee  v.  Means,  34  AJa.  349; 
Erickson  v.  Willard,  1  N.  H.  217;  Collins  v.  CarUsle's  Heirs,  7  B.  Mon.  (Ky.) 
13;    Bull  V.  Bull,  8  Conn,  47;    Hunter  v.  Stembridge,  12  Ga,  192.     But  see,. 


262  EQUITABLE    ESTATES.  (Ch.   10 

No  definite  rule  can  be  laid  down  as  to  when  the  use  of  such  words 
will  be  suflQcient  to  create  a  trust,  but  it  will  depend  in  each  case  on 
the  construction  of  the  whole  instrument,  and  the  intention  of  the 
settlor  appearing  therefrom.""  In  limiting  equitable  estates,  it  is 
not  necessary  to  use  the  same  technical  Avords  as  are  required  in  the 
limitation  of  estates  at  common  law.  All  that  is  necessary  is  suf- 
ficient words  to  show  the  intention."^ 
Statute  of  Fravda. 

At  common  law  an  express  trust  could  be  created  by  parol,"  but 
under  the  statute  of  frauds  it  must  be  evidenced  in  writing. ''^  But 
for  this  purpose  any  writing  signed  by  the  person  against  whom  the 
trust  is  so  to  be  enforced  will  be  sufficient,  if  it  show  the  existence  of 
the  tinist."*  And  if  the  statute  of  frauds  is  not  set  up,  and  the  trust 
is  admitted,  it  can  be  enforced,  although  created  by  parol,  since  no 
evidence  of  its  existence  is  necessary  in  such  case."'    In  some  states 

for  expressions  held  not  to  raise  a  trust,  Hopkins  v.  Glunt,  111  Pa.  St  287, 
2  Atl.  1S3;  Burt  v.  Herron's  Ex'rs,  66  Pa.  St  400;  Bowlby  v.  Thunder,  105 
Pa.  St  173;  Colton  v.  Colton,  10  Sawy.  325,  21  Fed.  5M;  Sears  v.  Cunning- 
ham, 122  Mass.  538. 

60  1  Perry,  Trusts  (4th  Ed.)  §  114.  See  cases  cited  In  last  note.  Of  this  same 
nature  are  "trusts  for  maintenance."  When  property  is  given  to  a  parent, 
or  to  one  standing  in  that  relation,  and  expressions  as  to  support  and  edu- 
cation of  the  grantee's  children  are  used,  the  propei-ty  will  be  impressed  with 
a  trust,  If  It  appears  that  such  was  the  grantor's  or  testator's  intention.  Whit- 
ing V.  Whiting,  4  Gray  (Mass.)  240;  Andrews  v.  President,  etc.,  3  Allen  (Mass.) 
.313;  Rittgers  v.  Rittgers,  56  Iowa,  218,  9  N.  W.  188;.  Babbitt  v.  Babbitt,  26 
N.  J.  Eq.  44.  But  there  will  be  no  trrist  if  the  expressions  as  to  maintenance 
were  used  merely  to  show  the  motive.  Rhett  v.  Mason's  Ex'r,  18  Grat  (Va.) 
541. 

01  Stanley  v.  Colt  5  Wall.  119;  Neilson  v.  Lagow,  12  How.  98;  Fisher  v. 
Fields,  10  Johns.  (N.  Y.)  495;  Welch  v.  Allen,  21  Wend.  (N.  Y.)  147;  Gould 
V.  Lamb,  11  Mete.  (Mass.)  84;  Newhall  v.  Wheeler,  7  Mass.  189;  Angell  y. 
Rosenbury,  12  Mich.  241;  Meredith  v.  Joans,  Cro.  Car.  244;  Egerton's  Case, 
Cro.  Jac.  525. 
62  1  Perry,  Trusts  (4th  Ed.)  §  75. 

68  29  Car.  n.  e.  3,  §  7;  Moore  v.  Horsley,  156  111.  36,  40  N.  E.  823;  C5allard 
V.  Callard,  Moore,  687;  Movan  v.  Hays,  1  Johns.  Ch.  (N.  Y.)  339;  Sherley  v. 
Sherley  (Ky.)  31  S.  W.  275;   Acker  v.  Priest  (Iowa)  61  N.  W.  235. 

64  steere  v.  Steere,  5  Johns.  Ch.  (N.  Y.)  1;  Barrell  v.  Joy,  16  Mass.  221; 
McClellan  v.  McClellan,  65  Me.  500;   Dyer's  Appeal,  107  Pa.  St.  446. 

66  Whiting  V.  Gould,  2  Wis.  552;  Thornton  v.  Vaughan,  2  Scam.  (111.)  219; 
Trustees  of  Schools  y.  Wright  12  111.  432;  Woods  y.  Dille,  11  Ohio,  455. 


§§    150-151)  CREATION    OF   EXPRESS    TRUSTS.  263 

it  is  provided  by  statute  that  trusts  must  be  created  and  declared  in 
writing."*'  When  a  trust  is  created  by  wiU,  the  same  formalities  in 
the  execution  of  the  will  are  required  as  for  a  valid  devise  of  lands. '^ 
The  statute  of  frauds  applies  to  public  or  charitable  trusts  as  well 
as  to  private." 

Parties. 

The  person  creating  a  use  or  trust  is  called  the  "feoffor."  Any 
one  owning  land  who  has  capacity  to  make  a  contract  or  a  will  can 
create  a  trust.*'  For  instance,  a  state  ®°  or  a  corporation,  if  the  lat- 
ter is  permitted  by  its  charter,  may  be  a  feoffor.®^  The  capacity  of 
married  women,  infants,  aliens,  etc.,  to  create  trusts.  Is  the  same  as 
their  capacity  to  deal  with  real  property.'* 

Any  one  may  be  a  trustee  who  is  capable  of  taking  the  legal  title 
to  realty."*  The  United  States  and  the  states  may,  of  course,  be  trus- 
tees, although  they  cannot  be  sued,  without  their  consent,  for  the  en- 
forcement of  the  trust.'*  Corporations  may  hold  lands  as  trustees, 
and  many  trust  companies  now  do  so."  A  married  woman  may  be 
a  trustee,  and  cannot  plead  her  incapacity  to  deal  with  the  title  to 

»•!  Stim.  Am.  St  Law,  §  1710;  Whiting  v.  Gould,  2  Wis.  552;  Bibb  v. 
Hunter,  79  Ala.  351;  Dunn  v.  Z willing  (Iowa)  62  N.  W.  746.  But  see  Pinnock 
V.  Clougb,  16  Yt.  508;  Jenkins  v.  Eldiidge,  3  Story,  181,  Fed.  Cas.  No.  7,266; 
McClellan  v.  McClellan,  65  Me.  500. 

6T  1  Pen-y,  Trusts  (4th  Ed.)  §§  90-94;  Thayer  v.  Wellington,  9  Allen  (Mass.) 
283. 

5  8  Thayer  v.  Wellington,  9  Allen  (Mass.)  283. 

6»  1  Perry,  Trusts  (4th  Ed.)  §  28. 

eo  Commissioners  of  Sinking  Fund  v.  Walker,  6  How.  (Miss.)  143;  Buchanan 
T.  Hamilton,  5  Ves.  722. 

61  Dana  v.  Bank,  5  Watts  &  S.  (Pa.)  223;  Barry  v.  Exchange  Co.,  1  Sandf. 
Ch.  (N.  Y.)  2S0;  Hopkins  v.  Turnpike  Co.,  4  Humph.  (Team.)  403;  State  v. 
President,  etc.,  of  Bank  of  Maryland,  6  Gill  &  J.  (Md.)  205. 

62  See  post,  p.  381. 

68  Commissioners  of  Sinking  Fund  v.  Walker,  6  How.  (Miss.)  143;  1  Perry, 
Trusts  (4th  Ed.)  §  39. 

64  1  PeiTy,  Trusts  (4th  Ed.)  §  41;  McDonogh's  Ex'rs  v.  Murdock,  15  How. 
367;    Shoemaker  v.  Commissioners,  36  Ind.  175. 

«6  Trustees  of  Phillips  Academy  v.  King,  12  Mass.  546.  So  municipal  cor- 
porations may  be  trustees.  Vldal  v.  Girard's  Ex'rs,  2  How.  127,  187.  It  waa 
formerly  held  that  a  corporation  could  not  be  a  trustee,  because  the  subpoena 
of  the  chancellor  operates  only  upon  the  conscience  of  the  trustee,  and  cor- 
porations were  said  to  have  no  souls.    1  Perry,  Trusts  (4th  Ed.)  §  42. 


264  EQUITABLS    ESTATES.  (Ch.  10 

land  when  a  trust  is  souf^ht  to  be  enforced  agaLnst  her."  The  ap- 
pointment of  a  married  woman  as  trustee,  however,  is  often  attended 
with  many  inconveniences,  owing  to  her  limited  power  of  dealing 
with  property.  For  similar  reasons,  an  infant  cannot  act  effect- 
ively as  a  trustee,  though,  of  course,  a  trust  may  be  enforced  against 
liim,  and  his  infancy  will  not  furnish  a  means  of  defrauding  his  ben- 
eficiary.®^ An  alien  may  act  as  a  trastee  in  jurisdiction  where  he 
is  permitted  to  hold  realty,  and  where  he  is  not  he  may  act  until  "of- 
fice found,"  upon  which  the  legal  title  would  escheat  to  the  state, 
but  would  still  be  held  for  the  benefit  of  the  cestui  que  trust. '^  A 
bankrupt  or  insolvent  person  may  be  a  trustee,'^  and,  if  he  became 
such  before  his  insolvency,  an  assignment  by  him  of  his  property  for 
the  benefit  of  creditors  would  not  carry  with  it  any  right  to  the  en- 
joyment of  the  property,  unless  the  assignor  had  also  some  bene- 
ficial interest  in  it.'^"     A  feoffor  may  make  himself  a  trustee.^ ^ 

Any  one  who  has  capacity  to  take  the  legal  title  to  lauds  may  be 
a  beneficiary.^' 

IMPLIED  TRUSTS. 

152.  Implied  trusts  are  those  created  by  operation  of  la^w 
in  order  to  do  justice  between  the  parties.  They 
are  either 

(a)  Resulting  trusts  (p.  265),  or 

(b)  Constructive  trusts  (p.  269). 

Some  of  the  cases  which  are  treated  as  trusts  are  not  properly 
called  trusts.  They  are  such  only  because  the  person  wronged  is 
given  some  of  the  remedies  which  a  cestui  que  trust  has.^^      As  to 

««  Livingston  v.  Livingston,  2  Johns.  Ch,  (N.  Y.)  537;  Clarke  T.  Saxton,  1 
Hill,  Eq.  (S.  C.)  69;   Berry  v.  Norris,  1  Duv.  (Ky.)  302. 

8  7  Jevon  v.  Bush,  1  Vera.  342. 

88  1  Perry,  Trusts  (4th  Ed.)  §  55. 

69  Sbryock  v.  Waggoner.  28  Pa.  St.  430. 

7  0  Carpenter  v.  Alaraell,  3  Bos.  &  P.  40;  Kip  v.  Bank,  10  Johns.  (N.  T.)  63; 
Ontario  Bank  v.  Mumford,  2  Barb.  Ch.  (N.  Y.)  596. 

Ti  Emery  v.  Chase,  5  Me.  232;  Brewer  v.  Hardy,  22  Pick.  (Mass.)  376; 
Hayes  v.  Kershow,  1  Sandf.  Ch.  (N.  Y.)  258. 

T2  1  Perrj',  Trusts  (4th  Ed.)  §  GO;   Neilson  v.  Lagow,  12  How.  107. 

T8  1  Perry,  Tioists  (4th  Ed.)  §  106;  2  Pom.  Eq.  Jur.  (2d  Ed.)  §  1058;   Green- 


§    153)  IMPLIED    TRUSTS RESULT1^Q    TRUSTS.  265- 

the  division  of  implied  trusts  into  resulting  and  constructive,  a  good 
deal  of  confusion  exists;  and,  while  the  mere  matter  of  classifica- 
tion may  not  "be  attended  with  any  important  legal  consequences,  it 
seems  well  to  make  the  distinction  clear,  and  treat  as  constructive 
trusts  only  those  into  which  an  element  of  fraud  enters.^* 

Trusts  created  by  operation  of  law,  as  already  stated,  are  not  ex- 
ecuted by  the  statute  of  uses,  nor  are  they  within  the  statute  of 
frauds;  for.  in  the  nature  of  things,  they  must  be  established  by  ev- 
idence outside  of  the  instrument  by  which  the  legal  title  is  trans- 
ferred.^* 

SAME— RESULTING  TRUSTS. 

153.  Resulting  trusts  are  those  in  -wrhich  the  court  seeks 
to  carry  out  the  presumed  intention  of  the  parties. 
The  principal  classes  of  resulting  trusts  are: 

(a)  Those  -where  the  grantor  disposes  of  only  the   legal 

title  (p.  266). 

(b)  Those  -where  the  object  of  the  trust  fails  in  -whole  or 

in  part  (p.  267). 

(c)  Those  -where  the  conveyance  is  taken  in  the  name  of 

another    than    the    one    paying    the    consideration 
(p.  267). 

The  ruling  element  in  a  resulting  trust  is  the  probable  intention 
of  the  parties.''®      In  every  case  in  which  a  resulting  trust  arises, 

wood's  Appeal,  92  Pa.  St  181;  Lathrop  v.  Bampton,  81  Cal.  17;  Hammond  v. 
Pennock,  61  N.  Y.  145;  Johnson  v.  Johnson,  51  Ohio,  44G,  38  N.  E.  61. 

74  2  Pom.  Eq.  Jur.  (2d  Ed.)  §  1053;  Moore  v.  Crawford,  130  U.  S.  122,  9  Sup. 
Ct.  447;  Dewey  v.  Moyer,  72  N.  Y.  70;  Huxley  v.  Rice,  40  Mich.  73;  Kayser 
V.  Maugham,  8  Ck>lo.  232,  6  Pac.  803. 

7  6  Kayser  v.  Maugham,  8  Colo.  232,  6  Pac.  803;  Bohm  v.  Bohm,  9  Colo.  100, 
10  Pac.  790;  Kennedy  v.  Kennedy,  2  Ala.  571;  Connolly  v.  Keating,  102  Mich. 
1,  00  N.  W.  289;  Cooksey  v.  Bryan,  2  App.  D.  C.  557;  Rozell  v.  Vansyckle,  11 
Wash.  79,  39  Pac.  270. 

7  6  2  Pom.  Eq.  Jur.  (2d  Ed.)  §  1031.  Fraud  is  not  a  necessary  element  Tal- 
bott  V.  Barber,  11  Ind.  App.  1,  38  N.  E.  487.  And  see  Thompson  v.  Marley, 
102  Mich.  476,  60  N.  W.  976w 


266  EQUITABLE    ESTATES.  (<^h.    10 

there  is  the  transfer  of  the  legal  title  to  land  to  one  who  is  not  in- 
tended to  hold  the  beneficial  interest,  or  at  least  not  all  of  it." 
Legal  Title  Only  Conveyed. 

In  the  first  class  of  resulting  trusts  mentioned  in  the  black-letter 
text,  there  is  a  transfer  of  the  legal  title  only,  without  any  intention 
to  convey  the  beneficial  interest.^ ^  If  a  man  transfers  the  legal  title 
to  land  to  one  who  is  not  entitled  to  the  beneficial  interest,  the 
equitable  title  remains  in  the  grantor,  and  the  grantee  is  a  mere 
trustee  for  him.''*  Such  cases  were  frequent  even  before  the  statute 
of  uses,  and  were  called  "resulting  uses."  •"  The  reason  for  the  rule 
is  that  a  court  of  equity  will  not  presume  an  intention  to  convey  the 
beneficial  interest  in  lands  to  a  stranger  without  any  consideration. 
If,  however,  there  is  any  consideration,"  or  in  the  conveyance  the 
use  is  declared  to  be  to  the  grantee,  as  is  the  case  in  modern  convey- 
ances operating  under  the  statute  of  uses,  the  beneficial  interest 
passes  to  the  grantee."  A  use  is  held  to  result  only  in  cases  where 
the  fee  is  conveyed  to  the  stranger.  If  any  less  estate  is  trans- 
ferred, the  presumption  that  the  grantor  did  not  intend  to  benefit 
the  stranger  is  rebutted,  and  the  grantee  takes  the  beneficial  inter- 
est" 

7T  Lloyd  V.  Spillet,  2  Atk.  150;  1  Perry,  Trusts  (4th  Ed.)  §  125;  2  Pom.  Eq. 
Jur.  (2d  Ed.)  §  1031. 

7  8  Hogan  V.  Stray  bom,  65  N.  C.  279;  Paice  v.  Archbishop  of  CaBterbuiy,  14 
Ves.  864;   Levet  v,  Needham,  2  Verm  138;   Cooke  v.  Dealey,  22  Beav.  196. 

7  9  1  Perry,  Trusts  (4th  Ed.)  §  150;  Armstrong  v.  Wolsey,  2  Wlls.  19.  Aud 
»iee  Burt  v.  Wilson,  28  Cal.  632. 

80  Farrington  v.  Barr,  36  N.  H.  86;   Philbrook  v.  Delano,  29  Me.  410. 

81  An  actual  consideration  will  prevent  a  trust  resulting.  Hogan  v.  Jaques, 
19  N.  J.  Eq.  123.  The  consideration  need  not  be  expressed  in  the  instrument 
of  conveyance.  Bank  of  U.  S.  v.  Housman,  6  Paige  (N.  Y.)  526;  Miller  v. 
Wilson,  15  Ohio,  108.  A  good  consideration  is  sufficient.  Groff  v.  Rohrer, 
35  Md.  327;  Sharington  v.  Strotton,  1  Plow.  298.  Cf.  Mildmay's  Case,  1  Coke, 
175.  But  not  friendship,  Warde  v.  Tuddingham,  2  Rolle,  Abr.  783,  pi.  5. 
The  earlier  cases  hold  a  mere  nominal  consideration  sufficient  to  rebut  the 
presumption.  Barker  v.  Keete,  Freem.  249.  And  see  Sandes'  Case,  2  Rolle, 
Abr.  791. 

82  See  post,  p.  409,  and  cf.  DiUaye  v.  Greenough,  45  N.  Y.  438;  Squire  v. 
Harder,  1  Paige  (N.  Y.)  494;  Jackson  v.  Cleveland,  15  Mich.  94.  Cf.  Blodgett 
V.  Hildreth,  103  Mass.  484;  Stevenson  v.  Crapnell,  114  111.  19,  28  N.  B.  379; 
McKinney  v.  Burns,  31  Ga.  295. 

8  8  Shortridge  v.  Lamplugh,  2  Salk.  678;   Anon.,  Brooke,  89. 


§    153)  IMPLIED    TRUSTS RESULTING    TRUSTS.  267 

Failure  of  Object  of  Thist 

When  lands  are  conveyed  to  a  trustee,  and  the  tmst  fails  either 
in  whole  or  in  part,  because  of  illegality,  or  of  some  defect  in  the  in- 
strument declaring  it,  as  much  of  the  trust  as  fails  results  back  to 
the  grantor,  his  heirs,  or  residuary  devisee.'*  The  result  is  the 
same  where  the  instrument  conveying  the  legal  title  shows  that  the 
grantee  is  to  hold  it  in  trust,  as,  for  instance,  by  the  use  of  the  words 
•''in  trust,"  or  "upon  the  trusts  hereafter  to  be  declared,"  and  no 
trusts  are  declared,  or  trusts  are  declared  as  to  part  of  the  estate 
only.  In  such  case  the  grantor  holds  the  beneficial  interest  under 
the  trust  which  results.  ®° 

Consideration  Paid  hy  Another. 

The  third  class  of  resulting  trusts  is  where  the  purchase  price  is 
paid  by  one  person,  and  the  conveyance  taken  in  the  name  of  an- 
other. In  these  cases  equity  presumes  that  it  was  the  intention 
that  the  one  who  paid  the  money  should  hold  the  beneficial  estate." 
In  order  that  this  presumption  may  arise,  however,  the  payment 
must  be  actually  made,'''  or  a  present  obligation  to  pay  incurred,  at 
the  time  of  the  conveyance,"  and  the  payment  must  be  made  as  a 

84  Gumbert's  Appeal,  110  Pa.  St  496,  1  All.  437;  Stevens  v.  Ely,  1  Dev.  Eq. 
(N.  O.)  493;  Hawley  v.  James,  5  Paige  (N.  Y.)  318;  Russell  v.  Jackson,  10 
Hare,  204;  Pilkington  v.  Boughey,  12  Sim.  114;  Williams  v.  Coade,  10  Ves. 
500. 

8  8  Sturtevant  v.  Jaques,  14  Allen  (Mass.)  523;  Morice  v.  Bishop  of  Durham, 
10  Ves.  521;   Dawson  v.  Clarke,  18  Ves.  247. 

8  9  Sayre  v.  Townsend,  15  Wend.  (N.  Y.)  647;  Kendall  v.  Mann,  11  Allen 
(Mass.)  15;  Latham  v.  Henderson,  47  111.  185;  Mathis  v.  StuSaebeam,  94  111. 
481;  Moss  V.  Moss,  95  111.  449;  McLenan  v.  Sullivan,  13  Iowa,  521;  Regan 
V.  Walker,  1  Wis.  527;  Collins  v.  Corson  (N.  J.  Ch.)  30  Atl.  862;  Gasbe  v. 
Young  (Ohio  Sup.)  38  N.  E.  20;  Lee  v.  Patten,  34  Fla.  149,  15  South.  775; 
Hews  V.  Kenney,  43  Neb.  815,  62  N.  W.  204.  When  a  co-tenant  takes  the  le- 
gal title  to  the  whole  tract,  a  resulting  trust  arises.  Rogers  v.  Donnellan 
(Utah)  39  Pac.  494.  For  evidence  held  insufficient  to  establish  this  form  of 
trust,  see  Throckmorton  v.  Throckmorton  (Va.)  22  S.  E.  162. 

8  7  Barnet  v.  Dougherty,  32  Pa.  St.  371;  Perkins  v.  Nichols,  11  Allen  (Mass.) 
542;  Alexander  v.  Tams,  13  111.  221;  Whiting  v.  Gould,  2  Wis.  552;  Sullivan 
V.  McLenans,  2  Iowa,  442;   Howell  v.  Howell,  15  N.  J.  Eq.  75. 

88  Gilchrist  v.  Brown,  165  Pa.  St  275,  SO  Aa  839;  Whaley  v.  Whaley,  71 
Ala.  159. 


268  EQUITABLE    ESTATES.  (Ch.   10" 

purchase,  and  not  as  a  loan."  A  payment  of  part  of  the  purchase 
price  will  raise  a  resulting  trust,  in  proportion  to  the  amount  paid.** 
Trusts  of  this  kind  often  arise  in  cases  of  joint  purchase,  where  the 
title  is  taken  in  the  name  of  one  only."  These  resulting  trasts  are 
abolished  by  statute  in  several  states,  except  where  the  title  is  taken 
in  the  name  of  another  person  without  the  consent  of  the  person 
paying  the  purchase  price.*'  It  is  provided  in  each  of  these  states, 
however,  that  these  trusts  may  be  enforced  in  favor  of  creditors  ol 
the  one  paying  the  money.'" 

Same — Deed  to   Wife  or  Child. 

Where  the  legal  title  is  taken  in  the  name  of  the  wife  or  a  child 
of  the  one  paying  the  purchase  price,  the  usual  presumption  does  not 
obtain,  and  no  trust  results;  for  it  is  considered  that,  when  the  one 
advancing  the  money  takes  the  title  in  the  name  of  one  whom  he  is 
under  a  legal  or  moral  obligation  to  support,  the  transaction  is  in- 
tended as  an  advancement  or  gift.**  Parol  evidence,  however,  is  ad- 
missible to  show  that  no  such  intention  existed,  and  in  this  way  to 
establish  a  resulting  trust;*'  and  the  transferee  may,  on  the  other 
hand,  introduce  evidence  to  show  that  an  advancement  was  intend- 
ed.*^ Here,  as  in  all  other  cases  where  a  trust  is  sought  to  be  es- 
tablished by  parol  evidence,  the  proof  must  be  clear.* • 

88  Francestown  v.  Deerlng,  41  N.  H.  438.  Cf.  McGowan  v.  McGowan,  14 
Gr^y  CMass.)  119;  Cramer  v.  Hoose,  93  111.  503;  Berry  v.  Wiedman  (W.  Va.) 
20  S.  E.  817. 

8  0  Smith  V.  Smith,  85  111.  189;  Botsford  v.  Burr,  2  Johns.  Ch.  (N.  Y.)  405; 
Say  re  v.  Townsend,  15  Wend.   (N.  Y.)  &47;  Latham  v.  Henderson,  47  111.  185. 

81  Robarts  v.  Haley,  65  Cal.  397,  4  Pac.  385;  Paige  v.  Paige,  71  Iowa,  313, 
32  N.  W.  3G0.     And  see  cases  In  the  last  note. 

8  2  1  stim.  Am.  St.  Law,  §  1706;  Haaven  v.  Hoaas,  60  Minn.  313,  62  N.  W. 
110. 

8  3  1  Stim.  Am.  St.  Law,  fi  1706.  But  see  McCahill  v.  McCahill,  11  Misc. 
Rep.  258,  32  N.  Y.  Supp.  836;   Gage  v.  Gage,  83  Hun,  362,  31  N.  Y.  Supp.  903. 

84  Cartwright  v.  Wise,  14  111.  417;  Guthrie  v.  Gardner,  19  Wend.  (N.  Y.> 
414;   Seibold  v.  Christman,  75  Mo.  308. 

86  Guthrie  v.  Gardner,  19  Wend.  (N.  Y.)  414;  Jackson  v.  Matsdorf,  11  Johns. 
(N.  Y.)  91;  Persons  v.  Persons,  25  N.  J.  Eq.  250;  Taylor  v.  Taylor,  4  Gilm. 
(111.)  303;  Butler  v.  Insurance  Co.,  14  Ala.  777;  Dudley  v.  Bosworth,  1^ 
Humph.  (Tenn.)  8. 

»T  Sldmouth  V.  Sidmouth,  2  Beav.  455. 

»•  Cartwright  v.  Wise,  14  111.  417;   Cairns  v.  Coleburn,  104  Mass.  274. 


I    154)  IMPLIED   TRUSTS CONSTRUCTIVE   TRUSTS.  269 


SAME— CONSTRUCTIVE  TRUSTS. 

154.  Where  the  title  to  real  property  is  acquired  by  fraud, 
the  law  to  do  justice  treats  the  wrongdoer  as  a 
trustee  for  the  one  defrauded.  Trusts  so  established 
are  called  constructive. 

Constructive  trusts  are  raised  in  order  to  do  justice  between  the 
parties,  without  any  reference  to  the  probable  intention,  and  in  most 
cases  contrary  to  the  intention,  of  the  trustee.  Constructive  trusts, 
in  all  cases,  arise  out  of  fraud." »  The  fraud,  however,  need  not  be 
actual,  but  may  be  implied, — such  as  fraud  which  is  presumed  from 
the  relation  of  the  parties.'"*  The  kinds  of  constructive  trusts 
which  may  arise  are  as  numerous  as  the  frauds  by  which  property 
may  be  obtained.  Only  the  principal  types  of  such  trusts  which 
arise  in  relation  to  realty  can  be  mentioned.  Where  property  which 
is  held  in  trust  is  acquired  by  a  purchaser  who  has  notice  of  the 
trust,'"^  or  by  one  who  pays  no  consideration  for  the  transfer,  t'> 
transi'eree  will  hold  the  property  subject  to  a  constructive  tnist  in 
favcr  of  the  one  beneficially  entitled. '°=^  This  same  result  obtains 
where  the  title  is  transferred  by  operation  of  law;  for  instance, 
when  it  descends  to  the  heirs  of  the  tinistee.'"'  In  this  class  of  con- 
fitructive  trust  no  actual  fraud  is  necessary,  and  in  fact  it  mi^ht  be 
said  that  a  trust  already  existing  is  continued  against  the  transferee 

»»  1  Perry,  Trusts  (4th  Ed.)  §  1G6.  See  Frick  Co.  v.  Taylor,  94  Ga.  683,  21 
S.  E.  713;  Farris  v.  Farris  (Ky.)  29  S.  W.  618;  Lawson  v.  Hunt,  153  111.  232, 
88  N.  E.  629;  Goldsmitli  v.  Goldsmith,  145  N.  Y.  313,  39  N.  E.  1067. 

100  See  Fetter,  Eq.  p.  142;  1  Perry,  Trusts  (4th  Ed.)  §  194;  Roggenkamp  v. 
Roggenkamp,  15  C.  C.  A,  600,  68  Fed.  605;  Cobb  v.  Trammell  (Tex.  Civ.  App.) 
80  S.  W.  482;  Haight  v.  Pearson,  11  Utah,  51,  39  Pac.  479.  But  see  Brown  v. 
Brown,  154  111.  35,  39  N.  E.  983. 

101  Wormley  v,  Wormley,  8  Wheat.  421;  Oliver  v.  Piatt,  3  How.  333;  Cald- 
well V.  Carington's  Heirs,  9  Pet.  86;  James  v.  Cowing,  17  Hun  (N.  Y.)  256; 
Ryan  v.  Doyle,  31  Iowa,  53;  Smith  v.  Walser,  49  Mo.  250;  Smith  v.  Jeffreys, 
(Miss.)  16  South.  377. 

402  Caldwell  v.  Carington's  Heirs,  9  Pet.  86. 

103  Randall  v.  Phillips,  3  Mason,  378,  Fed.  Cas.  No.  11,555;  Caines  v.  Grant's 
Lessee,  5  Bin.  (Pa.)  119. 


270  EQUITABLE    ESTATES.  (Ch.    10 

of  the  property,  rather  than  that  a  new  one  is  created.^"*  Another 
class  of  cases  tn  which  constructive  trusts  are  raised  is  where  a 
trustee  or  other  fiduciary  person  purchases  property  with  tmst 
funds,  and  takes  the  title  in  his  own  name.  In  such  case  he  holds 
the  property  so  purchased  in  trust  for  the  one  entitled  to  the  money 
with  which  the  property  was  purchased.^""  From  the  principle 
that  a  trustee  will  not  be  permitted  to  make  any  profit  for  himself 
out  of  transactions  connected  with  the  trust  property,"*  if  one  hold- 
ing a  fiduciary  position  renews  a  lease  to  lands  held  by  the  bene- 
ficiary the  renewal  will  operate  to  the  benefit  of  the  latter.  These 
cases  arise  principally  where  leases  are  renewed  by  a  partner  or  by  a 
trustee.^"^  "WTienever  a  man  appropriates  another's  property,  or 
wrongfully  converts  it  into  a  changed  form,  the  person  wronged  may 
treat  the  other  as  holding  the  property  in  trust  for  him.  This  is  the 
case  where  an  agent  embezzles  money  and  invests  it  in  land.  So 
long  as  the  money  can  be  traced,  a  trust  may  be  established  in  favor 
of  the  one  defrauded.^"*  Another  class  of  cases  where  constructive 
trusts  are  raised  is  where  the  trustee  acquires  the  trust  property  by 
a  purchase  at  his  own  sale  of  the  property,'^  °°  or  by  purchase  or  gift 
from  the  cestui  que  trust. ^"  TVTiere  a  transfer  of  property  is  pro- 
cured by  fraud  or  misrepresentations,  a  constructive  trust  is  said  to 
arise  ex  maleficio.^^^      An  instance  of  this  is  where  a  devise  is  pro- 

104  Gardner  v.  Ogden,  22  N.  Y.  327;  Swinburne  v.  Swinburne,  28  N.  Y.  568; 
Hubbell  V.  Medbury,  53  N.  Y.  98;   Baldwin  v.  Allison,  4  Minn.  25  (Gil.  11). 

lOB  Rice  v.  Rice.  108  111.  199;  Weaver  v.  Fisher,  110  111.  146;  Murphy  v. 
Murphy,  80  Iowa,  740,  45  N.  W.  914;  Everly  v.  Harrison,  167  Pa.  St.  355,  31 
Atl.  668;  Morgan  v.  Fisher,  82  Va.  417;  Pillars  v.  McConnell,  141  Ind.  670,  40 
N.  E.  089;  Merket  v.  Smith,  33  Kan.  66,  5  Pac.  894;  Thompson  v.  Hartline 
(Ala.)  16  South.  711. 

106  1  Perry,  Trusts  (4th  Ed.)  §  129. 

107  Featherstonhaugh  v.  Fenwick,  17  Ves.  298;  Ex  parte  Grace,  1  Bos.  &  P. 
376. 

108  Foote  v.  Colvin,  3  Johns.  (N.  Y.)  216;  Oliver  v.  Piatt,  3  How.  833; 
Grouch  V.  Lumber  Co.  (^Sliss.)  16  South.  496. 

108  Sypher  v,  McHenry,  18  Iowa,  232;  Bush  v.  Sherman,  80  111.  160.  Of. 
Hawley  v.  Cramer,  4  Cow.  (N.  Y.)  717. 

iioBerkmeyer  v.  Kellerman,  32  Ohio  St.  239;  Johnson  v.  Bennett,  39  Barb. 
(N,  Y.)  237;  Kern  v.  Chall'ant,  7  Minn.  487  (Git  393);  2  Pom.  Eq.  Jur.  (2d 
Ed.)  §  1053. 

Ill  Hoge  V.  Hoge,  1  Watts  (Pa.)  163. 


§§    155-156)  INCIDENTS    OF    EQUITABLE   ESTATES.  271 

cured  by  a  false  promise  to  hold  the  property  for  the  benefit  of  an- 
other person.  The  courts  wiU  enforce  such  a  promise  by  mali:ing 
the  devisee  a  trustee  of  the  property  for  such  person.^  ^'  So,  if  one 
purchases  property  upon  a  fraudulent  rerbal  promise  to  hold  it  for 
another,  he  will  be  treated  as  trustee  for  such  person,  as  where  he 
claims  to  be  purchasing  for  the  mortgagor  at  a  foreclosure  sale.^^* 

It  is  often  said  that  a  trust  arises  in  favor  of  creditors  where  there 
has  been  a  fraudulent  transfer  of  a  debtor's  property;  but  this  is  a 
misuse  of  the  term,  because  the  creditors  are  only  entitled  to  some 
of  the  remedies  given  against  a  trustee,  and  no  real  trust  in  fact  ex- 
ists.^^*  The  same  objection  exists  to  treating  a  vendor  under  a 
contract  of  sale  as  a  trustee  for  the  vendee,  or  a  surviving  partner 
as  a  trustee  of  the  partnership  funds. 

INCIDENTS  or  EQUITABLE  ESTATES. 

155.  A  trustee  is  the  holder  of  the  legal  title.     The  cestui 

que  trust  is  the  beneficial  o-WTier. 

156.  The  rights  and  duties  of  trustee  and  cestui  que  trust 

depend,  in  each  case,  upon  the  nature  and  terms  of 
the  trust. 

Few  general  principles  of  value  can  be  given  with  reference  to 
the  rights  and  duties  of  trustees  and  their  beneficiaries,  beyond  the 
fact  that  each  trust  contains  special  terms  and  provisions  which  af- 
fect the  rights  of  the  parties.  In  passive  trusts,  which  are  infre- 
quent from  the  fact  of  their  being  executed  by  the  statute  of  uses  in 
most  cases,  except  in  trusts  of  chattel  interests,^"  the  beneficiary  is 
entitled  to  the  possession  of  the  premises,  and  the  exercise  of  aU 
rights  of  an  actual  owner.^^'  The  trustee  merely  holds  the  legal 
title  subject  to  the  rights  of  the  cestui  que  trust.^^^ 

112  Williams  v.  Vreeland,  29  N.  J.  Eq.  417;  Dowd  v.  Tucker,  41  Conn.  197. 
And  see  Trustees  of  Amherst  College  v.  Ritch,  10  Misc.  Rep.  503,  31  N.  Y. 
Supp.  885. 

118  Sheriff  v.  Neal,  6  Watts  (Pa.)  534;  Ryan  v.  Dox,  34  N.  Y.  307;  Dennis  v. 
McCagg,  82  IlL  429;   Vanbever  v.  Vanbever  (Ky.)  30  S.  W.  983. 

114  2  Pom.  Eq.  Jur.  (2d  Ed.)  §  1057. 

115  See  ante,  p.  255. 

ii«  Campbell  v.  Prestons,  22  Grat  (Va.)  396;  Harris  v.  McElroy,  45  Pa.  St 

iiT  Stewart  v.  Chadwick,  8  Iowa,  463;  Bowditch  v.  Andrew,  8  Allen  (Mass.) 
839;    Matthews  v.  McPherson,  65  N.  C.  189. 


^72  EQUITABLE    ESTATES.  (Ch.   10 

In  active  or  special  trusts,  on  the  other  hand,  it  is  often  necessary 
that  the  trustee  retain  the  possession  in  order  that  he  may  perform 
the  duties  connected  with  the  carrying  out  of  the  trust.^^'  The 
principal  cases  of  active  trusts  are  those  to  convey  the  lands  held  in 
trust  to  a  certain  person  or  persons,  to  sell  the  lands,  to  invest  the 
trust  funds,  and  to  hold  the  property  and  receive  the  rents  and  profits 
for  the  benefit  of  the  cestuis  que  trustent.^^" 

Interest  of  the  Trustee. 

Trust  estates  are  generally  given  to  two  or  more  trustees  jointly. 
\Vhen  the  instrument  creating  the  trust  is  obscure,  such  a  construc- 
tion would  be  favored.""  Joint  trustees,  however,  cannot  have  par- 
tition."^ A  trust  will  never  be  allowed  to  fail  for  want  of  a 
trustee,  for  the  court  will  appoint  one  to  carry  out  the  trust**'  The 
questions  relating  to  appointment  and  removal  of  trustees,  their 
duties,  etc.,  relate  more  properly  to  treatises  on  equity,  and  will  not 
be  considered  here.*'' 

The  incidents  of  a  legal  estate  in  lands  attach  to  the  title  held  by 
a  trustee.^ ^*  For  instance,  he  may  sell  and  convey  ^^°  or  devise  it 
by  his  will.**'  In  New  York,  Michigan,  and  some  other  states,  prop- 
erty held  by  a  trustee  cannot  be  devised  by  him,  but  vests  in  the 

216;  Stevenson  v.  Lesley,  70  N.  Y.  512.  Retention  of  possession  by  the  gran- 
tor does  not  Invalidate  the  trust.  Williams  v.  Evans,  154  111.  98,  89  N.  B. 
698. 

118  Matthews  v.  McPherson,  65  N.  C.  189;  Young  v.  Miles'  Ex'rs,  10  B.  Mon. 
(Ky.)  290;  Shankland's  Appeal,  47  Pa.  St.  113;  Barnett's  Appeal,  46  Pa.  St. 
392;    McCosker  v.  Brady,  1  Barb.  Ch.  (N.  Y.)  329. 

ii»  See  cases  last  cited,  and  Blake  v.  Bumbury,  1  Ves.  Jr.  514;  Tidd  ▼. 
Lister,  5  Madd.  429;   Stanley  v.  Colt,  5  Wall.  119. 

120  Saunders  v.  Schmaelzle,  49  Cal.  59. 

121  See  post,  p.  344.    Baldwin  v.  Humphrey,  44  N.  Y.  609. 

122  Adams  v.  Adams,  21  Wall.  185;  Tainter  v.  Clark,  5  Allen  (Mass.)  66; 
Shepherd  v.  McEvers,  4  Johns.  Ch.  (N.  Y.)  136. 

123  See  Fetter,  Eq.  p.  200;  1  Perry,  Trusts,  §  259;  2  Pom.  Eq.  Jur.  §  1059. 

124  Devin  v.  Hendershott,  32  Iowa,  192;  1  Perry,  Trusts  (4th  Ed.)  §  821. 

12B  Shortz  V.  Unangst,  3  Watts  &  S.  (Pa.)  45;  Den  v.  Troutman,  7  Ired.  (N. 
C.)  155. 

12  8  As  to  the  words  which,  In  a  general  devise,  will  carry  estates  of  which 
the  testator  holds  the  legal  title  as  trustee,  see  Taylor  v.  Benham,  5  How.  238; 
Jackson  v.  De  Lancy,  13  Johns.  (N.  Y.)  537;  Merritt  v.  Loan  Co.,  2  Bdw.  Ch. 
<N.  Y.)  547;  Ballard  v.  Carter,  5  Pick.  (Mass.)  112. 


§§   156-166)  INCIDENTS    OF   EQUITABLE    ESTATES.  273 

court."^  The  trustee's  estate  on  his  death  descends  the  same  as 
legal  estates  held  by  him.^^s  ^^  assignees  of  the  trustee's  title, 
however,  take  it  subject  to  the  rights  of  the  beneficiary,  if  they  hare 
notice  of  the  trust,  or  do  not  pay  a  valuable  considerationj^s 

The  trustee,  being  in  law  the  legal  owner,  must  bring  and  defend 
all  actions  affecting  the  legal  title.^^"  If  the  cestui  que  trust  is  in 
possession,  he  may  maintain  trespass.^ ^^ 

Whenever  the  legal  and  equitable  titles  are  united  in  the  same 
person,  there  is  a  merger,  if  the  estates  are  of  the  same  quantity."" 
No  merger  takes  place,  however,  if  it  is  contrary  to  the  intention  of 
the  parties,  or  would  work  a  wrong.^^^ 

Interest  of  the  Cestui  Que  Trust. 

When  equitable  estates  were  introducedj  the  feudal  incidents  at- 
taching to  legal  titles  were  discarded,  and  with  them  the  restraints 
on  alienation  which  existed  at  common  law."*  Under  a  passive 
trust  the  beneficiary  is,  in  equity,  treated  as  an  absolute  owner."^ 
Except  under  the  statutes  of  New  York  and  a  few  other  states,"^ 
he  may  assign  his  equitable  interest,  and  compel  a  conveyance  by 
the  trustees."^     Rights  of  curtesy  and  dower  in  equitable  estates 

12T  1  Perry,  Trusts  (4th  Ed.)  §  341. 

12  8  Zabriskle  v.  Railroad  Co.,  33  N.  J.  Eq.  22. 

129  Ci-user  V.  Jones,  18  Barb.  (N.  Y.)  468;  Lahens  v.  Dupasseur,  56  Barb.  (N. 
T.)  266.    See  ante,  notes  101,  102. 

180  Mackey's  Adm'r  v.  Ck>ates,  70  Pa,  St.  350;  Warland  v.  Colwell,  10  R.  I. 
869;  Stearns  v.  Palmer,  10  Mete.  (Mass.)  32;  Second  Congregational  See.  v. 
Waring,  24  Pick.  (Mass.)  309. 

131  Cox  V.  Walker,  26  Me.  504. 

182  James  v.  Morey,  2  Cow.  (N.  Y.)  246;  Mason  v.  Mason's  Ex'rs,  2  Sandf. 
Ch.  (N.  Y.)  432;  HeaJey  v.  Alston,  25  Miss.  190;  Den  v.  Cooper,  25  N.  J.  Law, 
137.    But  see,  where  the  estates  are  not  equal,  Donalds  v.  Plumb,  S  Conn.  446. 

188  Gardner  v.  Astor,  3  Johns.  Ch.  (N.  Y.)  53.  Star  v.  Ellis,  6  Johns.  Ch. 
(N.  Y.)  393;  Hunt  v.  Hunt,  14  Pick.  (Mass.)  374;  Lewis  v.  Starke,  10  Smedes 
&  M.  (Miss.)  120. 

134  Dig.  Hist.  Real  Prop.  (4th  Ed.)  317. 

188  Bowditch  V.  Andrew,  8  Allen  (Mass.)  339. 

188  1  Stim.  Am,  St  Law,  §  1720. 

187  Sherman  v.  Dodge,  28  Vt  26;    Waring's  Ex'r  v.  Waring,  10  B.   Mon. 

(Ky.)  331;   Winona  &  St  P.  R.  Co.  v.  St  Paul  &  S.  C.  R.  Co.,  26  Minn.  179,  2 

N.  W.  489.    Where  it  was  the  duty  of  the  trustee  to  convey  art;  the  request  of 

bis  cestui,  a  conveyance  may  be  presumed,  in  order  to  give  security  to  titles, 

KEAL  PBOP. — 18 


274  EQUITABLE    ESTATES.  (Ch.    10 

have  already  been  considered. ^^*  Under  a  special  or  active  trust,  the 
rights  of  the  beneficiary  consist  principally  in  his  power  to  compel 
the  trustee  to  perform  the  trust.  Equitable  estates  are  subject  to 
payment  of  the  owner's  debts,^"  though  this  was  not  the  rule  at 
common  law.^*°  An  equitable  estate  may  be  lost  by  disseisin,  if 
not  recovered  within  the  time  prescribed  by  the  statute  of  limita- 
tions.^*^ Possession  by  the  trustee,  however,  is  regarded  as  the 
possession  of  the  cestui  que  trust,  and  so  is  not  adverse,  unless  the 
trustee  repudiates  the  trust.^*' 

CHARITABLE  TRUSTS. 

157.  Charitable  trusts  are  those  created  for   the   benefit  of 

the  public  at  large,  or  of  some  portion  of  it,  and 
include  benevolent,  religious,  and  educational  ob- 
jects. 

158.  Charitable  trusts  differ  from  private  trusts  principally 

in  that 

(a)  Less  certainty  of  description  in  designating  the  ob- 

ject and  beneficiaries  is  required. 

(b)  A   gift   from   one   charity  to  another  may  be  valid, 

though  on  a  contingency  'wrhich  is  remote,  under 
the  rule  against  perpetuities. 

(c)  The   rule  against  accumulations  probably  does  not 

apply  to  charitable  trusts. 

(d)  By  the  cy-pres  doctrine,  the  trust  funds  may  be  ap- 

plied to  some  other  object  than  the  one  designated 
by  the  creator  of  the  trust. 

although  In  fact  none  has  ever  been  made.  Moore  y.  Jackson,  4  Wend.  (N.  Y.) 
58. 

18  8  Ante,  pp.  77,  89. 

189  Jackson  v.  Walker,  4  Wend.  (N.  Y.)  402;  Hutchins  v.  Hey  wood,  50  N.  H. 
491. 

140  Pratt  V.  Colt,  Freem.  Ch.  139;   Forth  v.  Duke  of  Norfolk,  4  Madd.  503. 

1*1  Kane  v.  Bloodfrood,  7  Johns.  Ch.  (N.  Y.)  90;  HubbeU  v.  Medbury.  53  N. 
Y.  98;  Halsey  v.  Tate,  52  Pa.  St.  811;  Neel  v.  McElhenny,  69  Pa.  St.  300; 
Robertson  v.  Wood,  15  Tex,  1. 

H2  Zacharlas  v.  Zacharias,  23  Pa.  St  452;    Seymour  v.  Freer,  8  WalL  203; 


|§    lo7-lo8)  CHARITABLE    TRUSTS.  275 

The  terms  "public  trust"  and  "charitable  trust"  are  practically 
synonymous  in  their  use,  as  is  shown  by  the  following  definition: 
"A  charity,  in  a  legal  sense,  may  be  more  fully  defined  as  a  gift  to 
be  applied,  consistently  with  existing  laws,  for  the  benefit  of  an  in- 
definite number  of  persons,— either  by  bringing  their  hearts  under 
the  inlluence  of  education  or  religion;  by  relieving  their  bodies  from 
disease,  suffering,  or  constraint;  by  assisting  them  to  establish' 
themselves  for  life;  or  by  erecting  or  maintaining  public  buildings 
or  works,  or  otherwise  lessening  the  burdens  of  government."  *  The 
most  usual  objects  for  which  public  trusts  are  created  are  for  the 
founding  and  maintaining  of  schools  and  hospitals;  ^*'^  the  establish- 
ment of  funds  and  homes  for  the  poor,  and  other  dependent  class- 
es; ^**  the  building  and  repair  of  churches;  and  the  propagation  of 
religious  doctrines  in  other  ways.^*"*  After  considerable  conflict  of 
opinion,  it  has  been  decided  that  the  "statute  of  charitable  uses,"  ^*« 
so  called,  was  not  the  origin  of  charitable  trusts,  but  that  they  ex- 
isted prior  to  the  enactment  of  that  statute,  and  that  courts  of 
equity  have  jurisdiction  over  them  even  in  states  where  that  statute 
has  not  been  recognized  nor  re-enacted.^ *^ 

Public  trusts  are  created  in  the  same  way  as  private  trusts.*** 

Boone  v.  Chiles,  10  Pet.  177;  Oliver  v.  Piatt,  3  How.  333;  Davis  v.  Cobum, 
128  Mass.  377.  But  see  Halsey  v.  Tate,  52  Pa.  St.  311;  Neel  v.  McElhenny,  69 
Pa.  St.  300. 

*  Gray,  C.  J.,  in  Jackson  v.  Phillips,  14  Allen  (Mass.)  556. 

1*3  Tainter  v.  Clark,  5  Allen  (Mass.)  66;  Andrews  v.  Andrews,  110  III.  223; 
Board  of  Education  v.  Bakewell,  122  111.  339,  10  N.  E.  378.  Or  a  library.  Cott- 
man  v.  Gi-ace,  41  Hun  (N.  Y.)  345. 

1**  Attorney  General  v.  Old  South  Soc,  13  Allen  (Mass.)  474;  Shotwell  v. 
Mott,  2  Sandf.  Ch.  (N.  Y.)  46;  Chambers  v.  St.  Louis,  29  Mo.  543. 

145  Andrews  v.  Andrews,  110  111.  223;  Bridges  v.  Pleasants,  4  Ired.  Eq.  (N. 
C.)  26;  Attorney  General  v.  Wallace's  Devisees,  7  B.  Mon.  (Ky.)  611. 

1*6  43  Eliz.  c.  4. 

1*7  vidal  V.  Girard,  2  How.  127;  Going  v.  Emery,  16  Pick.  (Mass.)  107;  Gil- 
man  V.  Hamilton,  16  111.  225.  But  see  Trustees  of  Philadelphia  Baptist  Ass'n 
V.  Hart's  Ex'rs,  4  Wheat.  1. 

1*8  Olliffe  V.  Wells,  130  Mass.  221.  They  are  not  executed  by  the  statute  of 
uses,  because  the  trustees  generally  have  actual  duties  to  perform,  and  the 
beneficiaries  are  uncertain.    Beckwlth  v.  Rector,  etc.,  69  (Ja.  564. 


276  EQUITABLE    ESTATES.  (Ch.   10 

BeneJici<J/ry  Inc^jinite, 

Charitable  trusts  differ  from  private  trusts,  in  the  first  place,  in 
the  fact  that  thej  are  favored  by  the  courts  in  the  construction  of 
instruments  creating  them,  and  less  certainty  of  description  in  desig- 
nating the  purpose  of  the  trust  and  the  persons  intended  to 
be  benefited  is  permitted.^*'  This  must  necessarily  be  the  case,  for 
those  who  are  to  be  the  cestuis  que  trustent  are  generally  unknown, 
and  incapable  of  being  pointed  out  specifically;  i"*"  for  instance,  in  a 
trust  for  the  benefit  of  the  "poor"  of  a  certain  county.^" 

Perpetuities  arxd  Accuirvulations. 

Although  it  is  often  said  that  charitable  trusts  are  not  within 
the  rule  against  perpetuities,  this  is  true,  however,  only  in  the  case 
stated  in  the  black  letter.^"  The  subject  will  be  discussed  later, 
in  considering  perpetuities,^ ■*'  as  will  also  the  application  of  the 
rule  against  accumulations.^^* 

Doctrme  of  Cy-Pres. 

There  is  some  confusion  as  to  the  real  meaning  of  the  doctrine  of 
oy-pres.  In  many  cases  nothing  more  is  meant  than  that  courts  are 
favorable  to  the  establishment  of  charitable  trusts,  and  will  con- 
strue instruments  creating  them  liberally  in  order  to  carry  out  the 
Intention  of  the  one  creating  the  trust.^^"  The  true  doctrine  of  cy- 
pres, however,  is  that  when,  for  any  reason,  the  original  intention  of 
the  settlor  cannot  be  carried  out,^"  or  where,  under  the  provisions 
of  the  trust,  funds  accrue  for  which  no  disposition  has  been  pro- 
prided,^  "^  the  court  will  carry  out  the  intention  of  the  testator  as 
«iear  as  possible  (cy-pres);  that  is  to  say,  the  trust  funds  will  be  ad- 
ministered according  to  what  would  probably  have  been  the  intention 

1*8  Jackson  v.  Phillips,  14  Allen  (Mass.)  539;  Bartlet  v.  King,  12  Mass.  536; 
Baltonstall  v.  Sanders,  11  Allen  (Mass.)  446;   Inglis  v.  Trustees,  3  Pet  99. 

160  Burke  v.  Roper,  79  Ala.  142;  Holland  v.  Alcock,  108  N.  Y.  312,  16  N.  E. 
805. 

101  State  v.  Gerard,  2  Ired.  Eq.  (N.  C.)  210. 

162  Grey,  Perp.  §  592. 

IBS  Post,  p.  322. 

164  Post,  p.  330. 

IBB  2  Perry,  Trusts  (4th  Ed.)  §  727. 

iB«  Jackson  v.  Phillips,  14  AUen  (Mass.)  539. 

167  Attorney  General  v.  Rector,  etc.,  9  Allen  (Mass.)  422;  Glasgow  College 
T,  Attorney  General,  1  H.  L.  Gas.  800.     Cf.  Marsh  v.  Renton.  99  Mass.  132. 


§§    157-158;  CHARITABLE   TRUSTS.  277 

of  the  settlor  under  the  circumstances  then  existing.  An  example 
of  this  is  where  a  trust  was  created,  having  for  its  object  the 
creating  of  a  public  sentiment  that  would  lead  to  the  abolition  of 
negro  slavery.  After  slavery  was  abolished,  the  income  from  the 
trust  property  was  applied  to  the  education  of  the  freed  slaves,  as 
carrying  out  the  testator's  general  intention.^ °^ 

The  doctrine  of  cy-pres  is  recognized  in  the  federal  courts,^ ^^  and 
in  Massachusetts,^^*'  Kentucky,^'^  and  Rhode  Island.^'^  In  some 
states  it  is  recognized  in  a  modified  form,^®^  and  in  the  rest  the  doc- 
trine does  not  exist,"*  except,  as  previously  mentioned,  the  term 
is  sometimes  applied  to  the  favorable  rules  of  construction  which 
exist  in  the  case  of  charitable  trusts. 

168  Jackson  v.  Phillips,  14  Allen  (Mass.)  539 

1B8  Trustees  of  Philadelphia  Baptist  Ass'n  v.  Hart's  Ex'rs,  4  Wheat  1;  Per- 
rin  V.  Carey,  24  How.  405.     Of.  Wheeler  v.  Smith,  9  How.  55. 

180  Mai-sh  V.  Renton,  99  Mass.  132;  Attorney  General  v.  Rector,  etc.,  9  Allen 
(Mass.)  422;    Jaclison  v.  Phillips,  14  Allen  (Mass.)  539. 

161  Moore's  Heirs  v.  Moore's  Devisees,  4  Dana  (Ky.)  354;  Gass  v.  Wilhite, 
2  Dana  (Ky.)  170;  Curling's  Adm'rs  v.  Curling's  Heirs,  8  Dana  (Ky.)  38. 

162  Derby  v.  Derby,  4  R.  I.  414. 

183  See  Second  Congregational  Soc.  v.  First  Congregational  Soc,  14  N.  H. 
815;  Tappan  v.  Deblois,  45  Me.  122;  Howard  v.  Peace  Soc,  49  Me.  288;  Mc- 
Cord  V.  Ochiltree,  8  Blackf.  (Ind.)  15;  Beall  v.  Fox's  Ex'rs,  4  Ga,  404;  Cham- 
bers v.  St.  Louis,  29  Mo.  592;   Lepage  v.  McNamara,  5  Iowa,  124. 

164  Bascom  v.  Albertson,  84  N.  Y.  584;  White  v.  Howard,  46  N.  Y.  144; 
Methodist  Episcopal  Church  v.  Clark,  41  Mich.  730,  8  N.  W.  207;  Little  v. 
WlUford,  31  Minn.  178,  17  N.  W.  282;  Grimes'  Ex'rs  v.  Harmon,  85  Ind.  198. 


278        ESTATES    AS    TO    TIME    OF   ENJOYMENT FUTURE   ESTATES.       (Ch.    11 


CHAPTER  XI, 


ESTATES  AS  TO  TIME  OF  ENJOYMENT— FUTURE  ESTATES. 


159.  Estates  as  to  Time  of  Enjoyment. 

IGO.  Future  Estates. 

IGl.  Future  Estates  at  Common  Law. 

162.  Reversions. 

163.  Possibilities  of  Reverter. 
164—165.  Remainders. 

166.  Successive  Remainders 

167.  Cross  Remainders. 

168.  Alternate  Remainders. 

169.  Vested  Remainders. 
170-173.  Contingent  Remainders. 

174.  Rule  In  Shelley's  Case. 

175.  Future  Estates  under  the  Statute  of  Uses. 

176.  Future  Uses. 

177.  Springing  Uses. 

178.  Shifting  Uses. 

179-180.  Future  Estates   under  the   Statute  of  Wills— Executory   Devises, 

181.  Incidents  of  Future  Estates. 

182.  Tenure  of  Future  Estates. 

183.  Waste. 

184.  Alienation. 

185.  Descent  of  Future  Estates. 
186-189.  Powers. 

190-191.  Creation. 

192.  Classes  of  Pov?^ers  as  to  Donee. 

193.  Powers  Appendant  and  in  Gross. 

194.  Powers  Collateral,  or  Naked  Powenu 

195.  Classes  of  Powers  as  to  Appointee. 

196.  General  Powers. 

197.  Special  Powers. 

198.  Execution. 
199-200.  Rights  of  Creditors. 

201.  Destruction. 

202.  Rule  against  Perpetuities. 

203.  Estates  Subject  to  the  Rule. 

204.  Rule  against  Perpetuities  In  the  United  States. 
206.  Rule  against  Accumulations. 


§    161)  FUTURE   E8TATE8    AT   COMMON    LAW.  279 

ESTATES  AS  TO  TIME  OF  ENJOYMENT. 

159.  Estates  classified  -with  reference  to  the  time  at  -which 

the  o-wner  is  entitled  to  enjoyment  in  possession  are 
either 

(a)  Present,  or 

(b)  Future. 

FUTURE  ESTATES. 

160.  A  future  estate  is  one  which  does  not  entitle  its  owner 

to  the  possession  of  the  land  until  some  time  in  the 
future.  Future  estates,  according  to  the  source  to 
which  they  are  to  be  referred,  are: 

(a)  Those  possible  at  common  law  (p.  279). 

(b)  Those  arising  under  the  statute  of  uses  (p.  298). 

(c)  Those  arising  under  the  statute  of  wills  (p.  300). 

The  estates  which  have  been  considered  so  far  have  been,  for  the 
most  part,  estates  which  entitle  their  owners  to  the  immediate  pos- 
session of  the  land  in  which  the  estate  exists;  that  is,  they  have 
been  present  estates.  However,  mention  has  been  made  inciden- 
tally, in  several  places,  of  future  estates,  or  estates  which  do  not 
entitle  their  owners  to  immediate  possession.  A  future  estate  is 
what  remains  of  a  fee  simple  after  some  present  estate  of  a  less 
quantity  has  been  carved  out  of  it.  It  is  the  difference  between  a 
fee  simple  and  a  fee  tail,  or  a  fee  simple  and  a  life  estate,  etc.  When 
the  present  estate  comes  to  an  end,  the  future  estate  takes  effect 
in  possession,  and  becomes  a  present  estata 

FUTURE  ESTATES  AT  COMMON  LAW. 

161.  The  future  estates  or  interests  possible  under  the  com- 

mon law^  are: 

(a)  Reversions  (p.  280). 

(b)  Possibilities  of  reverter  (p.  281), 

(c)  Remainders  (p.  282). 


280        ESTATES    AS    TO   TIME   OF    ENJOYMENT — FOTUBB    ESTATES.       (Ch.   11 


SAME— REVERSIONS. 

162.  A  reversion  is  the  estate  which,  remains  in  an  owner 
after  he  has  granted  away  part  of  his  estate.  The 
estate  granted  is  called  the  particular  estate.  There 
may  be  a  reversion  after  any  estate  except  a  fee. 

"An  estate  in  reversion  is  the  residue  of  an  estate  left  in  the 
grantor  to  commence  in  possession  after  the  determination  of  some 
particular  estate  granted  out  by  him."  ^  A  reversion  can  be  creat- 
ed out  of  any  estate  except  an  estate  at  will  or  at  sufferance.  Out 
of  the  latter  estates  there  can  be  no  reversion,  because  in  creat- 
ing a  reversion  the  grant  of  a  particular  estate  is  necessary,  and 
no  alienation  is  possible  of  the  whole  or  of  part  of  an  estate  at  will 
or  at  sufferance.'  Any  number  of  particular  estates  may  be  creat* 
ed  by  one  owning  a  fee-simple,  and  still  a  reversion  may  remain, 
so  long  as  the  fee  itself  is  not  disposed  of.  For  example,  the  owner 
of  a  fee  may  grant  a  fee  tail,  and  on  failure  of  the  specified  heirs 
the  estate  will  revert  to  the  grantor  or  his  heirs.  So  out  of  a  fee 
tail  a  life  estate  might  be  granted,  and  there  would  be  a  rever- 
sion, or  out  of  a  life  estate  there  might  be  a  reversion  after  an 
estate  for  years.  The  owner  of  an  estate  for  years  may  grant  to 
another  a  term  for  a  shorter  time  than  his  own,  and  the  balance 
may  revert  to  him;  but,  if  he  grants  an  estate  of  as  long  duration 
as  his  own,  it  will  be  an  assignment,  and  there  will  be  nothing 
to  revert.'  Reversions  may  exist,  also,  after  estates  created  by 
operation  of  law;  for  instance,  after  an  estate  of  dower.*  So,  too, 
there  are  reversionary  interests  in  equitable  estates,  as  where  there 
is  a  resulting  trust  to  the  grantor  after  an  equitable  life  estate  in 
another  person."*  In  each  case  the  estate  which  precedes  the  re- 
version is  called  a  particular  estate. 

12  Bl.  C!omm,  175. 

«  See  ante,  pp.  157,  164. 

»  See  ante,  p.  148.  And  see,  aa  to  reversions  generally,  Cook  t.  Hammond, 
4  Mason,  467,  Fed.  Cas.  No.  3,159;  State  v.  Brown.  27  N.  J.  Law,  13;  Mc- 
Kelway  v.  Seymour,  29  N.  J.  Law,  321. 

*  See  ante,  p.  102. 

»  Loring  v.  Eliot,  16  Gray  (ilass.)  568;   Read  v.  Stedraan,  26  Beav.  495. 


§    163)  POSSIBILITIES    OF    REVERTER.  281 

The  nature  of  a  reversion  after  an  estate  less  than  a  freehold  has 
already  been  considered,  and  in  that  connection  the  right  of  a  re- 
Tersioner  to  rents,  and  the  rights  and  liabilities  of  the  parties  on 
covenants  contained  in  the  lease,  have  been  treated  of."  The  rights 
of  reversioners  will  be  considered  in  connection  with  the  incidents 
of  future  estates  in  general.^  When  both  the  particular  estate  and 
the  reversion  are  united  in  the  same  person,  they  will  merge.*  This 
Is  true  whether  the  estates  are  freehold  or  leasehold.*  And,  if  the 
latter,  a  particular  estate  consisting  of  a  longer  term  of  years  will 
merge  in  a  shorter  reversion,  and  the  former  estate  will  be  de- 
stroyed, leaving  only  the  shorter  term.^"  Disseisin  of  the  tenant  of 
the  particular  estate  does  not  affect  the  reversioner,  because  he  has 
no  immediate  right  of  entry.  And  the  statute  of  limitation  under 
Buch  disseisin  does  not  begin  to  run  before  the  time  at  which  the 
reversioner  becomes  entitled  to  the  possession.^* 


SAME— POSSIBILITIES  OF  EEVERTER. 

163.  After  a  fee  on  condition  or  on  limitation,  the  interest 
remaining  in  the  grantor  is  called  a  possibility  of 
reverter. 

As  has  been  stated,  a  reversion  may  exist  after  any  particular 
estate  less  than  a  fee.  Where  a  fee  is  granted,  and  a  right  of  en- 
try reserved  for  the  breach  of  a  condition,  no  reversion  exists. 
There  is  only  what  is  called  a  possibility  of  reverter.^*  The  same 
was  true  of  a  fee  conditional  at  common  law  before  the  statute  de 
donis,  though  there  was  a  possibility  that  the  estate  might  revert 
to  the  grantor  for  the  failure  of  heirs  of  the  body  of  the  grantee; 
yet,  this  possibility  not  being  an  estate,  there  was  no  reversion, 

•  Ante,  p.  134. 
»  Post,  p.  302. 

«2  Washb.  Real  Prop.  (5th  Ed.)  808. 

•  See  Martin  v.  Tobln,  123  Mass.  85. 

10  Hughes  V.  Robotham,  Cro.  Eliz.  302;   Stephens  v.  Bridges,  6  Madd.  CG. 
»i  Jackson  v.  Schoonmaker,  4  Johns.  (N.  Y.)  390. 

12  Slegel  T.  Lauer,  148  Pa.  St.  236,  23  AU.  996;  NicoU  v.  Railroad  Co.,  12 
N.  Y.  121. 


282        ESTATES    AS    TO    TIME    OF   ENJOYMENT FUTURE    ESTATES.       (Cll.    11 

but  only  a  possibility  of  reverter.^*  In  such  case,  however,  after 
the  statute  de  donis  had  changed  the  fee  conditional  into  an  es- 
tate tail,  there  was  a  reversion.^*  A  possibility  of  reverter  may  be 
transferred.*'  "In  Gray's  rule  against  perpetuities,*'  it  is  contend- 
ed that  since  quia  emptores,  abolishing  tenure  between  feoffor  and 
feoffee  on  a  grant  of  the  fee  simple,  possibilities  of  reverter  are  not 
valid  interests  in  land,  and  that  by  virtue  of  that  statute  base  fees 
have  ceased  to  exist.  But  in  the  United  States  base  fees  are  not 
considered  as  dependent  on  the  existence  of  tenure,  and  are  still 
recognized  as  valid  estates,  as  Prof.  Gray  concedes  and  laments."* 

SAME— REMAINDERS. 

164.  A  remainder  is  an  estate  depending  on  a  preceding 

particular  estate,  created  by  the  same  instrument, 
and  limited  to  arise  on  the  termination  of  the  pre- 
ceding estate,  but  not  in  derogation  of  it. 

165.  Remainders  are  either 

(a)  Vested  (p.  288),  or 

(b)  Contingent  (p.  289). 

It  will  be  seen  from  the  above  definition  of  a  remainder  that 
it  differs  from  a  reversion  principally  in  that  the  residue  of  the 
estate  remaining  after  the  particular  estate  in  the  case  of  a  rever- 
sion goes  back  to  the  grantor  or  his  heirs,  but  in  a  remainder  this 
residue  is  limited  over  to  a  third  person.*^  Remainders  are  always 
created  by  express  limitation,  and  can  never  arise  by  operation  of 
law.*"     A  remainder  must  always  be  created  by  the  same  instru- 

i«  See  ante,  p.  45. 

14  2  Washb.  Real  Prop.  (5th  Ed.)  801. 

loSlegel  V.  Lauer,  148  Pa,  St.  236,  23  Atl.  996;  Scheetz  v.  Fitzwater,  6 
Pa.  St.  126.     Contra,  NIcoU  v.  Railroad  Co.,  12  N.  Y.  126. 

le  Sections  31^:2. 

•Graves,  Real  Prop.  185,  citing  Boiling  v.  Mayor,  etc,  of  Petersburg,  8  Leigh 
(Va.)  229;   Leonard  v.  Burr,  18  N.  Y.  98. 

IT  Booth  V.  Terrell,  16  Ga.  20;   Phelps  v,  Phelps,  17  Md.  120. 

i«  See  Dennett  v.  Dennett,  40  N.  H.  498.  As  to  the  difference  between  pur- 
chase and  descent,  see  post,  p.  399. 


§§    164-165)  REMAINDERS.  283 

ment  as  the  particular  estate  which  precedes  It.^*  This  is,  in  ef- 
fect, an  assignment  of  the  reversion  at  the  time  of  the  creation  of 
the  particular  estate.  But,  if  the  reversion  is  assigned  at  a  sub- 
sequent time,  it  is  still  called  a  reversion,  and  not  a  remainder.  A 
remainder  must  always  be  so  limited  as  to  take  effect  at  once  on 
the  termination  of  the  particular  estate  on  which  it  depends.^" 
But  it  is  held  that  a  child  in  ventre  sa  mere  at  the  termination 
of  the  preceding  estate  is  capable  of  taking  a  remainder  which  vests 
then.^^  The  rule  that  remainders  must  talce  effect  immediately  on 
the  termination  of  the  preceding  estate  has  been  changed  in  some 
states  by  statute.*'  A  remainder  must  not  take  effect  in  deroga- 
tion of  the  particular  estate  on  which  it  depends;  that  is,  the  vest- 
ing of  the  remainder  must  not  cut  short  the  preceding  estate.** 
Such  a  limitation  can  take  effect  only  as  a  shifting  use  or  a  shift- 
ing devise.**  There  may,  however,  be  a  remainder  after  an  estate 
on  limitation.^ ^  That  is,  when  an  estate  is  given  to  determine  ab- 
solutely on  the  happening  of  an  event,  a  valid  remainder  may  be 
limited  to  begin  on  the  termination  of  that  estate.  For  example, 
an  estate  may  be  given  to  A.  and  his  heirs  until  B.  returns  from 
Kome,  and  then  the  remainder  given  to  C.  This  would  be  valid, 
since  the  remainder  does  not  cut  short  the  prior  estate.  But  if 
the  limitation  was  to  A.  and  his  heirs,  but,  if  B.  returns  from  Rome, 
then  to  C,  the  estate  could  not  take  effect  as  a  remainder.  The 
preceding  estate,  being  one  on  condition,  is  cut  short  by  the  event 
on  which  it  is  attempted  to  cause  the  remainder  to  vest.*^  A  re- 
mainder may  be  created  out  of  an  equitable  estate.*'  Any  estate 
as  to  quantity  may  be  created  in  remainder;  that  is,  a  fee,  fee  tail, 

19  2  Washb.  Real  Prop. 

20  Hennessy  v.  Patterson,  85  N.  Y.  91;   Doe  v.  Oonsldine,  6  Wall.  458,  474. 

21  See  Burdet  v.  Hopegood,  1  P.  Wms.  486. 
2  2  1  stim.  Am.  St.  Law,  §§  1421,  1426. 

23  2  Washb.  Real  Prop.  (5th  Ed.)  601.  In  New  York,  Michigan,  and  some 
other  states  contingent  remainders  are  not  bad  because  they  may  defeat 
the  preceding  estate.  1  Stim.  Am.  St  Law,  8  1426  O,  And  see  Gillespie  v. 
Allison,  115  N.  C.  542,  20  S.  B.  627. 

24  See  post,  pp.  299,  300. 
so  See  ante,  p.  177. 

«T  See  Proprietors  of  Church  In  Brattle  Square  t.  Grant,  3  Gray  (Mass.)  142. 
«•  Scofield  v.  Alcott,  120  111.  362,  U  N.  E.  351. 


284        ESTATES    A3    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 

life  estate,  etc.,  may  be  created  to  take  effect  in  futuro  as  re- 
mainders.    In  limiting  such  estates  the  technical  words  to  be  used 
are  the  same  as  when  creating  estates  in  possession.** 
The  Particular  Estate, 

As  already  seen,  there  can  be  no  remainder  without  a  preceding 
particular  estate;  that  is,  a  remainder  cannot  be  limited  after  an 
estate  reserved  to  the  grantor.  The  particular  estate  must  be  a 
freehold.'"  And  the  pai-ticular  estate  which  is  required  to  support  a 
remainder  cannot  be  created  by  operation  of  law.  For  instance,  an 
heir,  in  assigning  dower,  cannot  limit  a  remainder  to  begin  on  the 
termination  of  the  widow's  life  estate.*^  As  a  general  rule,  there 
can  be  no  remainder  where  there  can  be  no  reversion,'*  though 
there  may  be  a  reversion  where  there  can  be  no  remainder.  So 
there  can  be  no  remainder  after  a  fee,  except  in  a  few  states  where 
the  rule  has  been  changed  by  statute,"  nor  after  a  qualified  fee;'* 
but,  as  already  stated,  there  may  be  one  after  a  fee  tail.'^  If  the 
particular  estate  on  which  a  remainder  depends  never  takes  effect, 
as  where  the  tenant  of  the  first  estate  refuses  or  is  not  qualified 
to  take,  the  remainder,  if  vested,  takes  effect  at  once.  This  is 
called  acceleration  of  remainders." 

Freelwld  m  JPuturo. 

At  common  law  there  was  a  rule  that  no  limitation  of  an  estate 
was  valid  which  would  put  the  freehold  in  abeyance;  or,  as  it  was 
otherwise  expressed,  a  freehold  could  not  be  created  to  commence 
in  futuro."  This  is  but  another  form  of  the  rule  that  the  par- 
ticular estate  which  precedes  and  supports  a  remainder  must  be  a 

2  8  Phelps  V.  Phelps,  17  Md.  120,  134;  Nelson  v.  Russell,  135  N.  Y.  137,  31 
N.  E.  1008;  Livingston  v.  Greene,  52  N.  Y.  118;  Jones  v.  Swearingen,  42 
S.  C.  58,  19  S.  E.  947;    Doren  y.  Gillum.  136  Ind.  134,  35  N.  E.  1101. 

»o  See  ante,  p.  34. 

81  Coolt  V.  Hammond,  4  Mason,  4G7,  Fed.  Gas.  No.  3,159. 

« 2  See  2  Washb.  Real  Prop.  (5th  Ed.)  586. 

88  1  Stim.  Am.  St.  Law,  §  1424d. 

8<  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  8  Gray  (Mass.)  142. 

8  6  Driver  v.  Edgar,  1  Comp.  379. 

80Dareus  v.  Crump,  6  B.  Mon.  (Ky.)  363;  Macknet's  Ex'rs  v.  Macknet,  24 
N.  J.  Eq.  277;  Yeaton  v.  Roberts,  28  N.  H.  469.  But  see  Blatchford  v.  New- 
berry, 99  111.  11. 

«T  Buckler  v.  Hardy,  Oro.  Eliz.  585. 


^§    164-165)  REMAINDERS.  285 

freehold.  This  was  due  to  the  technical  doctrine  that  there  must 
always  be  some  one  seised  of  the  inheritance.^^  This  rule  did  not 
apply,  as  has  been  seen,^'*  to  the  creation  of  chattel  interests,  be- 
cause for  them  no  seisin  was  required,  the  only  thing  transferred  to 
the  tenant  being  the  possession.  And  there  is  the  further  reason 
that  a  leasehold  to  begin  in  the  future  is  a  contract  to  create  an 
estate  for  years,  which  is  executed  by  the  lessee  taking  possession. 
It  was  possible,  however,  at  common  law,  to  create  reversions  and 
remainders,  because,  though  they  were  future  estates,  their  crea- 
tion did  not  place  the  freehold  in  abeyance,  the  tenant  of  the  par- 
ticular estate  having  the  seisin  of  a  freehold.  Remainders  cannot 
be  created  to  begin  in  futuro.*"  By  statute,  in  many  states,  free- 
holds may  now  be  limited  to  commence  in  futuro,  with  or  without 
a  preceding  estate,"  and  freeholds  in  futuro  may  be  created  by 
conveyances  not  operating  at  common  law;  that  is,  by  conveyances 
operating  under  the  statute  of  uses  or  the  statute  of  wills.  These 
are  springing  and  shifting  uses  and  executory  devises.  They  take 
effect  without  a  particular  estate  to  support  them  or  in  derogation 
of  such  an  estate.  Remainders  cannot  be  valid  in  either  of  these 
cases.  Limitations  of  future  estates  must  not  be  good  as  remain- 
ders, or  they  will  be  so  construed.*  If  a  limitation  takes  effect  as 
a  remainder,  it  cannot  subsequently  operate  as  a  springing  or  shift- 
ing use  or  an  executory  devise  when  it  has  failed  as  a  remainder.! 

But  a  limitation  in  a  will  which  would  be  good  as  a  remainder  at 
the  time  the  will  was  executed,  but,  on  account  of  an  event  occurring 
before  the  death  of  the  testator,  becomes  impossible  as  a  remainder, 
may  take  effect  as  an  executory  devise.J    But  an  estate  which  has 

88  See  ante,  p.  32. 

8»  See  ante,  p.  133. 

40  Doe  V.  Considine,  6  Wall.  458,  474;  Brown  v.  Lawrence,  3  Oush.  (Mass.) 
890,  898:    Wilkes  v.  Lion,  2  Gow.  (N.  Y.)  333. 

*i  1  Stim.  Am.  St.  Law,  §  1421. 

♦Sawley  v.  Northampton,  8  Mass.  3;  Parker  v.  Parker,  5  Mete.  (Mass.) 
134;  Stehman  v.  Stehman,  1  Watts  (Pa.)  466;  Manderson  v.  Lukens,  23  Pa. 
St.  31;   Doe  v.  Selby,  2  Bam.  &  C.  926;  Hasker  v.  Sutton,  1  Bing.  500. 

tManderson  v.  Lukens,  23  Pa.  St.  31;  Crozier  v.  Bray,  39  Hun,  121;  Doe 
V.  Howell,  10  Barn.  &  C.  191;  Purefoy  v.  Rogers,  2  Saund.  3S0.  But  see 
Doe  V.  Roach,  5  Maule  &  S.  482. 

JHopkins  v.  Hopkins,  Gas.  t,  Talb.  44;    Doe  v.  Howell,  10  Barn.  &  G.  191. 


286        ESTATES    AS   TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 

become  operative  as  epringing  or  shifting  use  or  executory  devise 
will  be  turned  into  a  remainder  at  any  time  when  that  becomes 
possible.** 


166.  SUCCESSIVE  REMAINDERS  —  One   remainder  may 

be  limited  to  take  effect  after  another,  until  the  fee 
is  exhausted.  Such  limitations  are  called  succes- 
sive remainders. 

One  remainder  may  be  limited  to  take  effect  after  another,  and 
so  on  until  the  fee  is  exhausted.*"  For  example,  there  may  be  an 
estate  given  to  A.  for  life,  with  remainder  to  B.  for  life,  with  re- 
mainder to  C.  for  life;  and,  if  no  further  disposition  of  the  estate 
was  made  on  the  death  of  C,  the  estate  would  revert  to  the  gran- 
tor or  his  heirs.  These  successive  remainders  must,  like  other  re- 
mainders, take  effect  immediately  after  each  other.*" 

167.  CROSS    REMAINDERS  —  Remainders    after    two    or 

more  particular  estates  -which  all  go  over  to  the 
last  survivor  of  the  particular  tenants  are  called 
cross  remainders. 

Where  two  or  more  have  particular  estates,  the  remainders  of 
which  are  so  limited  that  on  the  death  of  any  one  his  share  goes 
over  to  the  others,  and  so  on  until  all  the  shares  are  vested  in  the 
last  survivor,**  the  estates  which  are  limited  over  in  this  way  are 

♦♦Thompson  v.  Hoop,  6  Ohio  St.  480;  Wells  v.  Ritter,  3  Whart.  (Pa.)  208. 
At  common  law,  future  estates  cannot  be  created  out  of  chattel  interests. 
A  life  estate  and  a  remainder  cannot  be  limited  out  of  a  term  of  years, 
though  the  duration  of  the  term  be  greater  than  the  possible  duration  of 
the  life  of  the  first  taker.  Maulding  v.  Scott,  13  Ark.  88;  Merrill  v.  Emery, 
10  Pick.  (Mass.)  507.  But  such  limitations  may  be  made  either  as  future 
uses  or  executory  devises.  Smith  v.  Bell,  6  Pet.  (58;  Gillespie  v.  Miller,  5 
Johns.  Ch.  (N.  Y.)  21;  Maulding  v.  Scott,  13  Ark.  88;  Wright  v.  Cartwright. 
1  Burrows,  282;    Lampet's  Case,  10  Coke,  46. 

*2  2  Washb.  Real  Prop.  (5th  Ed.)  589. 

*8  Whitcomb  v.  Taylor,  122  Mass.  243. 

**  Hawley  v.  Northampton,  8  Mass.  3;  Seabrook  v.  Mlkell,  1  Cheves  (S. 
O.)  80.    But  see,  for  cases  where  the  whole  does  not  go  to  the  last  survivor, . 


§  168)  ALTERNATE  REMAINDERS.  287 

called  cross  remainders.  The  term  applies  only  to  the  limitation 
over  after  the  particular  estates,  and  not  to  those  estates  them- 
selves. The  limitation  may  be  either  by  deed  *»  or  by  will.*'  Those 
in  whom  cross  remainders  are  vested  in  some  respects  resemble 
joint  tenants.*^ 

168.  ALTERNATE  REMAINDERS — When  remainders  are 
so  limited  after  a  particular  estate  that  only  one  of 
them  can  ever  take  effect  they  are  called  alternate 
remainders. 

Two  or  more  remainders  in  fee  may  be  so  limited  that  one  of 
them  only  can  take  effect.  For  example,  land  may  be  given  to  A. 
for  life,  and,  if  he  have  issue  male,  then  to  such  issue  male  and 
his  heirs  forever,  but,  if  he  die  without  issue  male,  then  to  B.  and 
his  heirs  forever.*'  In  this  case  only  one  remainder  could  talce 
effect,  and  the  other  would  be  absolutely  void;  or,  in  other  words, 
an  alternate  remainder  in  fee  can  be  limited  to  take  effect  in  place 
of  another,  but  not  subsequently  to  it,  for  there  can  be  no  remain- 
der after  a  fee.*^  Limitations  of  this  character  are  called  alternate 
remainders  in  fee,  substitutional  fees,  and  fees  with  a  double  as- 
pect»» 

McGee  v.  Hall,  26  S.  0.  179,  1  S.  E.  711;  Reynolds  v.  Crispin  (Pa.  Sup.)  11 
Atl.  236. 

*BBohon  V.  Bohon,  78  Ky.  408.  But  they  will  not  be  raised  In  a  deed  by 
Implication.     Doe  v.  Worsley,  1  East,  416;    Do3  v.  Dorvell,  5  Term  R.  518. 

*«  Atherton  v.  Pye,  4  Term  R.  710.  Of.  Doe  v.  Cooper,  1  East,  229.  In 
a  will  they  may  arise  by  implication.  Watson  v.  Foxon,  2  East,  36;  Doe 
V.  Webb,  1  Taunt.  234;  Ashley  v.  Ashley,  6  Sim.  858. 

47  See  post,  p.  333.  But  It  is  not  necessary  that  the  four  unities  which 
are  required  for  joint  tenants  be  present  in  the  case  of  cross  remainders. 

48  Terrell  v.  Reeves,  103  Ala.  264,  16  South.  54;  Loddington  v.  Klme,  1 
Salk-  224;   Goodright  v.  Dunham,  Doug.  264;   Smith  v.  Horlock,  7  Taunt.  129. 

*»  See  Demill  v.  Reid,  71  Md.  175,  17  Atl.  1014;  Taylor  v.  Taylor,  63  Pa. 
St.  481;  Beckley  v.  Leffingwell,  57  Conn.  163,  17  Atl.  766;  Bank  v.  Ballard's 
Assignee,  83  Ky.  481. 

60  See  Whitesides  v.  Cooper,  115  N.  G.  570,  20  S.  B.  295. 


288        ESTATES    AS    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 

169.  VESTED  REMAINDERS— A  vested  remainder  is  one 
^where  neither  the  right  to  the  estate  nor  the  person 
entitled  is  uncertain.  The  only  uncertainty  is  as 
to  the  enjoyment. 

It  will  be  seen  from  this  definition  that  in  a  rested  remainder 
only  the  possession  is  postponed;  that  is,  a  vested  remainder  is  a 
present  right  to  the  future  enjoyment  of  an  estate,  and  n\  ill  vest 
in  possession  as  soon  as  the  particular  estate  determines.^^  No 
amount  of  uncertainty  as  to  enjoyment  makes  a  remainder  contin- 
gent. For  instance,  a  vested  remainder  may  be  given  to  A.  for 
life,  to  take  effect  after  an  estate  tail  in  B.  In  this  case,  if  A.  is 
a  person  in  being,  the  remainder  is  vested,  although  he  will  prob- 
ably never  enjoy  his  estate."  In  doubtful  cases  remainders  ar« 
construed  as  vested,  rather  than  as  contingent."  A  contingent 
remainder  becomes  vested  upon  the  happening  of  the  event  which 
makes  it  contingent,  and  is  then  in  all  respects  like  other  vested 
remainders. ''^ 

Remainders  to  a  Class. 

Where  a  remainder  is  given  to  a  class  of  persons,  as  "to  the  children 
of  A.,"  as  soon  as  A.  has  children  the  remainder  becomes  vested;  but, 
if  other  children  are  bom  before  the  particular  estate  determines,  it 
will  open  to  admit  them."^*     A  conveyance  by  the  children  in  whom 

"  Croxall  V.  Shererd,  5  Wall.  268,  288;  Haward  v.  Peavey,  128  111.  430, 
21  N.  E.  503;  Marvin  v.  Ledwith,  111  111.  144;  Hill  v.  Bacon,  106  Mass.  578; 
In  re  Young,  145  N.  Y.  535,  40  N,  E.  226;  Crews'  Adm'r  v.  Hatcher,  91  Va, 
378,  21  S.  E.  811. 

03  Kemp  V.  Bradford,  61  Md.  330;   Gourley  v.  Woodbury,  42  Vt  3J)5. 

68  Scofleld  V.  Olcott,  120  111.  302,  11  N.  E.  351;  Wedekind  v.  Hallenberg,  88 
Ky.  114,  10  S.  W.  368;  Anthony  v.  Anthony,  55  Conn,  256,  11  AtL  45; 
Weatherhead  v.  Stoddard,  58  Vt.  623,  5  Atl.  517;  Dingley  v.  Dingley,  5  Mass. 
535. 

0*  Doe  V.  Considine,  6  Wall.  458;  Wendell  v,  Crandall,  1  N.  Y.  491;  Van 
Glesen  v.  White  (N.  J.  Ch.)  30  Atl.  331;    Doe  v.  Perryn,  3  Term  R.  484, 

00  Rudebaugh  v.  Rudebaugh,  72  Pa.  St.  271;  Mlnnig  y.  Batdorfif,  5  Pa. 
St  503;  Ross  t,  Dralie,  37  Pa.  St.  373;  Doe  v,  Provoost,  4  Johns.  (N,  Y.)  61; 
In  re  Young,  145  N.  Y.  535,  40  N.  E.  226;  Haggerty  v.  Hockenberry  (N,  J. 
Ch.)  30  Atl.  88;  Downes  v.  Long,  79  Md.  382,  29  Atl.  827;  Security  Co.  v. 
Cone,  64  Conn.  579,  31  Atl,  7;    Parker  v.  Leach  (N,  H.)  81  AtL  19;    In  re 


§    170)  CONTINGENT    REMAINDERS.  289 

the  remainder  had  vested  would  not  bar  the  rights  of  others  subse- 
quently born,  not  even  if  the  conveyance  was  made  by  a  guardian 
of  the  children  under  an  order  of  court"'  Limitations  of  this  kind, 
however,  are  to  be  distinguished  from  those  which  are  not  to  take 
effect  until  the  death  of  the  parent;  for  instance,  where  a  remain- 
der is  given  "to  the  children  of  A.  living  at  his  death."  In  this 
case  the  remainder  is  contingent,  and  does  not  vest  until  A.'s  death, 
because  up  to  that  time  the  persons  who  are  to  take  cannot  be  as- 
certained.^^ 

Destruction  of  Vested  Remainders. 

There  may  be  a  vested  remainder  subject  to  be  defeated  by  a 
contingency;  that  is,  a  vested  remainder  may  be  limited  as  an 
estate  on  condition  or  on  limitation. ^^  Vested  remainders  are  de- 
stroyed by  merger,"®  and,  when  limited  after  estates  tail,  may  be 
barred  in  the  same  way  as  the  entail. '**  But  in  no  other  case  will 
acts  of  the  tenant  of  the  particular  estate  defeat  a  vested  remain 
der." 

170.  CONTINGENT  REMAINDERS  —  A  contingent  re- 
mainder is  one  -where  there  is  an  uncertainty  as  to 
either  the  right  to  the  estate,  or  the  person  enti- 
tled, or  as  to  both.  A  contingent  remainder  de- 
pends on  an  event  "w^hich  may  never  happen,  or 
"v^rhich  may  not  happen  until  after  the  termination 
of  the  particular  estate. 

Leohmere  &  Lloyd,  18  Ch.  Div.  524.  See,  also,  Ayton  v.  Ayton,  1  Cox,  Ch. 
S27;  Gilmore  v.  Severn,  1  Brown,  Ch.  582.  No  one  born  after  the  par- 
ticular estate  determines  can  take.  Ayton  v.  Ayton,  1  Cox,  Ch.  327;  Demill 
V.  Reid,  71  Md.  175,  17  Atl.   1014. 

6«  Graham  v.  Houghtalin,  30  N.  J.  Law,  552. 

B7  Dwight  V.  Eastman,  62  Vt.  398,  20  Atl.  594;  Kansas  City  Land  Co.  v. 
Hill,  87  Tenn.  589,  11  S.  W.  797;  Chambers  v.  Chambers,  139  Ind.  Ill,  88 
N.  E.  334;    Crews'  Adm'r  v.  Hatcher,  91  Va.  378,  21  S.  E.  811. 

88  Roome  V.  Phillips,  24  N.  Y.  463;    Doe  v.  Moore,  14  Bast,  601. 

"  See  ante,  p.  51. 

«o  Gray,  Perp.  §  111. 

61  Rohn  T.  Harris,  180  HI.  525,  22  N.  B.  587;  Whitney  v.  Salter,  86  Minn. 
103,  30  N.  W.  755;  Allen  v.  De  Groodt,  98  Mo.  159.  11  S.  W.  240;  Varney 
T.  Stevens,  22  Me.  831;    Wilson  v.  Parker  (Miss.)  14  South.  264.     But  see 

REAL,  PROP.  —19 


290        ESTATES    AS    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 

An  example  of  a  contingent  remainder  is  where  an  estate  is 
given  to  A.  for  life,  and,  if  B.  die  before  C,  then  to  C.  in  fee. 
This  is  contingvnt,  because,  if  A.  die  before  B.,  the  remainder  will 
not  be  ready  to  vest,  and  will  be  defeated.'^  Before  the  vesting  of 
a  contingent  remainder,  the  fee  continues  in  the  grantor,  and,  on 
the  failure  of  the  remainder,  reverts  to  him,  unless  otherwise  dis- 
posed of.*'  A  contingent  remainder  must  vest  at  or  before  the  ter- 
mination of  the  particular  estate  which  precedes  it;  but,  as  already 
said,  a  child  in  ventre  sa  mere  is  regarded  as  in  being,  so  that  a 
remainder  may  vest  in  it.'* 

Distmguishedfrom  Vested. 

In  contingent  remainders,  as  distinguished  from  vested,"  there 
is  an  uncertainty  as  to  vesting  of  the  right  or  title,  as  well  as  to 
the  vesting  of  the  possession."  For  a  vested  remainder  there  must 
be  some  certain,  defined  person,  in  esse  and  ascertained,  who  answers 
the  description  of  remainder-man  at  some  time  during  the  continu 
ance  of  the  particular  estate,  and  not  merely  at  its  termination; 
and  the  remainder  must,  of  course,  be  capable  of  taking  effect  in 
possession  immediately  on  the  termination  of  the  preceding  partic- 
ular estate.'^  For  example,  a  limitation  to  A.  for  life,  with  re- 
Fidelity  Insurance,  Trust  &  Safe-Deposit  Co.  v.  Dletz,  132  Pa.  St.  30,  18 
Atl.  1090. 

«a  See  McCampbell  v.  Mason,  151  111.  500,  38  N.  B.  672;  Cheney  v.  Teesc. 
108  111.  473;  McCartney  v.  Osburn,  118  111.  403,  9  N.  B.  210;  Kingman  v. 
Harmon,  131  111.  171,  23  N.  B.  430;  Waddell  v.  Ratlew,  5  Rawle  (Pa.)  231; 
Richardson  v.  Wheatland,  7  Mete.  (Mass.)  169.  Alternate  remainders  are 
necessarily  both  contingent.     Luddington  v.  Kime,  1  Ld.  Raym.  203. 

8  8  Shaplelgh  v.  Pilsbury,  1  Me.  271.  Cf.  Wilson  v.  Denlg,  166  Pa.  St.  29, 
30  Atl.   1025. 

«<  Reeve  v.  Long,  8  Lev.  408;  Doe  v.  Clarke,  2  H.  Bl.  899;  Blasson  v. 
Blasson,  2  De  Gex,  J.  &  S.  665.  So  by  statute  In  some  states.  1  Stlm.  Am. 
St.  Law,  §  1418. 

«5  See  Napper  v.  Sanders,  Hut.  118. 

6  6  Temple  v.  Scott,  143  111.  290,  32  N.  B.  366;  L'Etourneau  v.  Henquenet, 
89  Mich.  428,  50  N.  W.  1077;  Loddlngton  v.  Klme,  1  Salk.  224;  Goodrlght 
V,  Dunham,  Doug.  264.  Where  a  devise  is  made  to  a  woman,  and,  If  she 
"die  childless,"  remainder  over,  the  remainder  Is  contingent  until  her  death. 
Furnish  v,  Rogers,  154  111.  569,  39  N.  E.  989. 

67  Blanchard  v.  Blanchard,  1  Allen  (Mass.)  223.  And  see  Thompson  v 
Hill   (Sup.)  33  N.   Y.   Supp.  810. 


§    170)  CONTINGENT   REMAINDERS. 


291 


mainder  to  the  eldest  son  of  B.,  becomes  vested  as  soon  as  B.  has 
a  son;  but,  if  the  remainder  had  been  to  the  eldest  son  of  B.  liv- 
ing at  A.'s  death,  the  remainder  would  have  been  contingent,  and 
could  not  possibly  vest  until  A.'s  death,  which  in  this  case  is  also 
a  termination  of  a  particular  estate.  This  remainder  will  be  con- 
tingent, because  the  person  who  is  to  take  can  only  be  ascertained 
at  the  termination  of  the  particular  estate;  yet,  if  B.  has  a  son, 
the  remainder  is  capable  of  vesting  in  possession  at  any  time  the 
particular  estate  may  be  determined." 

A  remainder  is  defined  by  the  New  York  Code  "  as  vested  "when 
there  is  a  person  in  being  who  would  have  an  immediate  right  to 
the  possession  of  the  land  upon  the  ceasing  of  the  intermediate  or 
precedent  estate."  This  definition  has  been  followed  by  the  courts 
of  New  York  and  of  other  states  as  a  correct  definition  of  a  vested 
remainder  at  common  law,  and  has  introduced  great  confusion  into 
American  law  on  the  distinction  between  vested  and  contingent  re- 
mainders.'"' Its  defect  lies  in  the  fact  that  it  embraces  such  re- 
mainders as  the  one  we  were  discussing  in  the  preceding  para- 
graph. Mr.  Tiedeman  suggests  as  "a  reliable  test"  between  vested 
und  contingent  remainders  "the  present  capacity  to  convey  an  ab- 
solute title  to  the  remainder."  ^*  This  criterion  might  be  valuable, 
were  it  not  for  the  fact  that  it  is  necessary  to  know  whether  or  not 
a  remainder  is  vested,  before  the  capacity  of  the  remainder-man 
to  convey  an  absolute  title  can  be  determined. 

In  determining  whether  a  remainder  is  vested  or  contingent,  it 
should  be  borne  in  mind  that  limitations  of  remainders  are  some- 
times in  such  form  that  the  contingency  refers  to  the  enjoyment  of 
the  estate,  rather  than  to  the  vesting  of  the  title. 
Estates  Which  will  Support  a  Contingent  Remainder. 

A  contingent  remainder,  if  of  an  estate  of  freehold,  must  have 
a  particular  estate  of  freehold  to  support  it.    There  must  be  some 

«8  And  see  Richardson  v.  Wheatland,  7  Mete.  (Mass.)  169;  Olney  v.  Hull, 
21  Pick.  (Mass.)  811;  Thomson  v.  Ludington,  104  Mass.  193;  Colby  v.  Dun- 
can, 139  Mass.  398,  1  N.  E.  14A\  In  re  Callahan's  Estate,  13  Phila.  (Pa.)  230; 
Cralge's  Appeal,  126  Pa.  St.  223,  17  Atl.  585.  But  see  Smith  v.  West,  103 
111.  332. 

6  9  Rev.  St.  (8th  Ed.)  pt.  2,  c.  1,  tit.  2,  §  13. 

TO  Croxall  v.  Shererd,  5  Wall.  268.    See  Chapl.  Suspen.  9  28. 

Ti  Tied.  Real  Prop.  (Eul.  Ed.)  389,  note  2. 


292        ESTATES    AS    TO    TIME    OF   ENJOYMENT FUTURE    ESTATES.       (Ch.    11 

one  to  take  the  seisin,  and  for  this  a  freehold  is  necessary,'"  For 
example,  if  land  be  given  to  A.  for  25  3  ears,  if  he  lives  so  long,  with 
remainder  after  his  death  to  B.,  the  remainder  to  B.  is  contingent, 
since  A.  may  not  die  until  after  the  expiration  of  the  25  years, 
and  therefore  is  invalid,  because  there  is  no  freehold  to  support  it. 
But,  if  the  term  of  3'ears  given  to  A.  was  so  long — for  instance,  80 
or  100  years — that  there  is  no  probability  of  A.'s  living  until  the 
expiration  of  the  time,  it  is  held  that  remainder  is  good,  because 
A.  really  has  an  estate  for  life.  But  no  length  of  time  which  is 
not  sufficient  to  raise  a  strong  presumption  that  the  first  taker 
will  die  before  its  expiration,  and  so  give  him,  in  effect,  a  life  es- 
tate, is  sufficient  to  change  the  rule,  and  to  make  the  contingent 
remainder  valid.^' 

Contingency  on  Which  Remainder  may  Depend. 

From  the  definition  of  a  remainder,  the  contingency  on  which  a 
remainder  is  to  vest  must  in  no  case  be  in  derogation  of  the  preced- 
ing estate.^*  And  so  a  contingent  remainder  will  be  void  if  it  is 
made  to  depend  on  an  unlawful  condition,  or  one  against  public 
policy.'"  For  example,  a  remainder  to  illegitimate  children,  to  be 
subsequently  conceived,  is  void.'"  With  these  exceptions,  a  re- 
mainder may  be  made  to  depend  on  any  contingency  which  the  in- 
genuity of  the  person  creating  the  remainder  may  devise.  Elabo- 
rate schemes  of  classifying  remainders  according  to  the  contingen- 
cies on  which  they  depend  have  been  devised,^ ^  but  such  refinements 
serve  no  useful  purpose. 

T«  See  ante,  p.  82;  Doe  v.  Consldine,  6  Wall.  458,  474.  In  some  states 
this  has  been  changed  by  statute.     1  Stlm.  Am.  St.  Law,  §  1424. 

T»  2  Washb.  Real  Prop.  (5th  Ed.)  616;  Weale  v.  Lower,  PolL  55,  67;  Nap- 
per  v.  Sanders,  Hut  118. 

T4  Proprietors  of  Brattle  Square  Church  v.  Grant,  8  Gray  (Mass.)  142, 
149;  Green  v.  Hewitt,  &7  111.  113.  But  see  Goodtitle  v.  Billington,  1  Doug, 
753. 

tb2  Washb.  Real  Prop.  (5th  Ed.)  629.  A  contingent  remainder  may  be 
void  for  remoteness,  as  will  be  seen  when  the  rule  against  perpetuities  is 
discussed,  post,  p.  322.    ■ 

»e  Blodwell  V.  Edwards,  Cro.  Eliz.  509;  Lomas  v.  Wright,  2  Mylne  &  K. 
709. 

7T  Fearne's  classification  is  as  follows:  First  class:  Where  the  remainder 
depends  entirely  on  the  contingent  determination  of  the  preceding  estate 


|§    171-173)  CONTINGENT    REMAINDERS.  293 

171.  At  common  law,  contingent  remainders  may  he  de- 

stroyed 

(a)  By  the  expiration  of  the  particular  estate  before  the 

remainder  vests. 

(b)  By  the  destruction  of  the  particular  estate. 

(c)  By  merger   of  the   particular    estate    and    the    next 

vested  remainder. 

(d)  By  forfeiture  of  the  particular  estate. 

172.  In  many  states  the  liability  of  contingent  remainders 

to  destruction  has  been  removed  by  statute  (p.  294). 

173.  In  any  state  the  destruction  of  contingent  remainders 

may  be  prevented  by  limitations  "to  trustees  to 
preserve  contingent  remainders"  being  added  in 
the  creation  of  the  estates  (p.  295). 

As  has  already  been  said/*  if  the  particular  estate  should  ter- 
minate by  its  natural  limitation,  any  contingent  remainders,  de- 
pendent thereon,  which  are  not  then  capable  of  taking  possession^ 
will  be  destroyed,  because,  from  the  nature  of  a  remainder,  it  must 
take  effect  immediately  after  the  expiration  of  the  preceding  es- 
tate.''® In  general,  it  may  be  said  that  a  contingent  remainder  is 
destroyed  by  any  means  arising  after  the  limitation  of  the  estate 

itself.  Second  class:  Where  some  uncertain  event,  unconnected  with  and 
collateral  to  the  determination  of  the  preceding  estate,  is,  by  the  nature 
of  the  limitation,  to  precede  the  remainder.  Third  class:  Where  a  remain- 
der is  limited  to  take  effect  upon  an  event  which,  though  it  certainly  must 
happen  some  time  or  other,  yet  may  not  happen  until  after  the  determina- 
tion of  the  particular  estate.  Fourth  class:  Where  a  remainder  Is  limited 
to  a  person  not  ascertained  or  not  in  being  at  the  time  when  such  limita- 
tion is  made.  Contingent  Remainders,  5-9.  Biackstone  divides  contingent 
remainders  into  two  classes,  where  the  limitation  is,  first,  "to  a  dubious  and 
uncertain  person";  or,  second,  "upon  a  dubious  and  uncertain  event."  2 
Comm.    1G9. 

T8  Ante,  p.  283. 

T8  Doe  V.  Ck)nsidlne,  6  Wall.  458;  Irvine  v.  Newlin,  63  Miss.  192;  Festing 
T.  Alien,  12  Mees.  &  W.  279;  Price  v.  Hall,  L.  R.  5  Eq.  399;  Astley  v. 
Micklethwalt,  15  Ch.  Div.  59;  Holmes  v.  Prescott,  33  Law  J.  Ch.  264;  Rhodes 
V.  Whitehead,  2  Drew.  &  S.  532. 


294        ESTATES    AS    TO    TIME    OP    ENJOYMENT FUTURE   ESTATES.       (Ch.    11 

by  which  the  particular  estate  is  defeated.'"  This  is  not  the  case, 
however,  when  the  legal  fee  is  outstanding,  and  the  particular  es- 
tate and  remainder  are  both  equitable.*^  So,  at  common  law,  the 
tenant  of  the  particular  estate,  by  surrendering  his  title  to  the  one 
having  the  next  vested  remainder,  could  cause  his  particular  estate 
to  be  merged,  and  thus  cut  out  all  contingent  remainders  interven- 
ing betw'een  his  estate  and  the  vested  remainder.®^  Merger  occurs, 
and  thus  destroys  intei*vening  contingent  remainders,  whenever  the 
particular  estate  and  the  next  vested  remainder  are  united  in  the 
same  person  by  act  of  law  or  of  the  parties.'^  This  is  not  the  case, 
however,  when  the  two  estates  are  so  limited  by  the  instrument 
creating  them.'*  At  common  law  if  the  tenant  of  the  particular 
estate  asserted  a  greater  right  or  title  than  he  had,  as  by  making  a 
tortious  feoffment,  it  caused  a  forfeiture  of  his  estate,  and  thus  de- 
stroyed am-  contingent  remainders  depending  thereon.'"  But,  to 
have  this  effect,  there  must  have  been  an  entry  by  the  one  entitled 
to  the  next  vested  remainder,  or  by  the  reversioner.'*  But,  as  already 
stated,  the  tortious  effect  of  a  feoffment  no  longer  obtains.'^ 

Destruction  Prevented  hy  Statute. 

By  statutes  in  many  states  it  is  now  provided  that  a  contingent 
remainder  shall  not  be  destroyed  by  acts  of  the  tenant  of  the  par- 
ticular estate,  nor  by  the  termination  of  the  particular  estate  be- 
fore the  remainder  vests." 


80  Doe  V.  Gatacre,  5  Bing.  N.  O.  609;  Archer's  Case,  1  Coke,  66b.  As  to 
the  effect  of  a  disseisin  of  the  tenant  of  the  particular  estate,  see  1  Stim. 
Am.  St.  Law,  §  1403b. 

81  Abbiss  V.  Burney,  17  Ch.  Div.  211;  Berry  v.  Berry,  7  Ch.  DIv.  657; 
Marshall  v.  Glngell,  21  Oh.  Div.  790;   Astley  v.  Micklethwait,  15  Ch.  Div.  59. 

8>  See  Fisher  v.  Edington,  12  Lea  (Term.)  189. 

88  Jordan  v.  McClure,  85  Pa.  St.  495;  Craig  v.  Warner,  5  Mackey  (D.  C.) 
460. 

84  Dennett  v.  Dennett,  40  N.  H.  498.  See,  however,  Egerton  v.  Massey, 
8  C.  B.  (N.  S.)  338;    Bennett  v.  Morris,  6  Rawle  (Pa.)  8. 

8B  Archer's  Case,  1  Coke,  66b;   Doe  v.  Howell,  10  Barn.  &  O.  1»1. 

8  6  Williams  v.  Angell,  7  R.  I.  145. 

87  Ante,  p.  59. 

8»  1  Stim.  Am.  St  Law,  SS  1403,  1426;  2  Snars.  &  B.  Lead.  Cas.  Real 
Prop.    368. 


§  174)  RULE  IN  Shelley's  case.  295 

Trustees  to  Preserve  Contingent  Remavnders. 

On  account  of  the  liability  of  contingent  remainders  to  destruc- 
tion by  the  determination  of  the  preceding  estate,  a  device  was  in- 
troduced to  prevent  this  result,  as  follows:  After  the  limitation  of 
a  particular  estate, — for  instance,  an  estate  to  A.  for  life, — the  re- 
mainder was  given  to  trustees  to  preserve  contingent  remainders 
during  the  life  of  A.,  and  then  other  remainders  over  as  in  the  usual 
limitations.  In  these  cases.  If  by  any  means  A.'s  life  estate  was 
determined  before  his  death,  the  trustees  would  hold  the  estate  un- 
til his  death,  when  the  other  remainders  would  take  effect  as 
though  A.  had  not  lost  his  estate.  The  trustees  were  held  to  take 
vested  remainders  under  these  limitations;  otherwise  their  estates 
would  be  destroyed  like  other  contingent  remainders.^®  The  stat- 
ute of  uses  does  not  execute  the  estate  of  the  trustees.® °  If  the 
trustees  should  do  anything  to  destroy  their  own  estate,  and  there- 
by defeat  the  contingent  remainders  depending  thereon,  they  would 
be  guilty  of  a  breach  of  trust,  and  liable  for  the  damages  suffered 
by  the  remainder-men,'* 

SAME— RULE  IN  SHELLEY'S  CASE. 

174.  If  an  estate  of  freehold  be  limited  to  a  person,  and 
by  the  same  instrument  an  estate  be  limited  in  the 
form  of  a  remainder,  Tvhether  immediately  after  the 
estate,  or  after  other  estates  interposed,  to  the  heirs, 
or  to  the  heirs  of  the  body,  of  the  same  person,  the 
Tvords  "heirs,"  or  "heirs  of  the  body,"  are  words 
of  limitation  of  an  estate  of  inheritance  in  the  an- 
cestor, and  the  heirs  can  take  only  by  descent,  and 
not  as  purchasers.** 

A  grant  "to  A.  and  to  his  heirs,"  and  a  grant  "to  A.  for  life, 
and  after  his  decease  to  his  heirs,"  according  to  the  primitive  force 

8»  Smith  V.  Packhurst,  3  Atk.   135. 
»o  Vanderheyden  v.  Crandall,  2  Denio  (N.  Y.)  9. 

»i  2  BL  Comm.  171.    For  a  full  account  of  trustees  to  preserve  contingent 
remainders,  see  Webster  v.  Cooper,  14  How.  488. 
sa  Leake,  Land,  343. 


296 


ESTATES    AS    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 


and  effect  of  the  expressions,  were  manifestly  identical,  inasmuch 
as  they  both  conferred  life  estates  upon  A.,  and  upon  the  persons 
designated  as  his  heirs  in  succession.  They  were  still  construed 
as  identical,  notwithstanding  the  change  in  the  position  and  inter- 
est of  the  heir  consequent  upon  the  enlarged  power  of  alienation  in 
the  ancestor.  The  limitation  "to  the  heirs,"  in  both  cases,  ceased 
to  confer  directly  any  estate  upon  the  persons  answering  to  that 
designation,  and  was  referred  to  the  estate  of  the  ancestor,  which, 
though  expressed  to  be,  in  the  first  place,  for  life,  it  enlarged  to 
an  estate  of  inheritance,  so  that  the  heir  took  only  by  descent.  This 
is  the  origin  and  simplest  form   of  the  rule  in  Shelley's  Case. 

The  limitations  with  which  we  have  to  do  in  considering  this 
rule  are  not,  as  is  seen  from  the  definition,  remainders,  but  they 
are  remainders  in  form.  Tlie  rule  above  stated  is  called  the  rule 
in  Shelley's  Case  because  it  was  applied  in  an  early  case  by  that 
uame,«3  though  the  rule  did  not  originate  in  that  case.  As  indi- 
cated by  the  statement  of  the  rule  given  in  the  black  letter,  where 
a  remainder  is  given  to  the  heirs,  or  the  heirs  of  the  body,  of  the 
one  who  by  the  same  instrument  is  given  the  particular  estate,  the 
word  "heirs"  is  a  word  of  limitation,  and  not  of  purchase;  and  the 
first  taker  has  a  fee  simple,  or  a  fee  tail,  as  the  case  may  be,  in- 
stead of  a  life  estate  followed  by  a  remainder,  as  the  form  of  limi- 
tation would  indicate."  The  rule  in  Shelley's  Case  applies  to  lease- 
holds as  well  as  to  freeholds."  The  limitations  must  be  all  in  one 
•instrument,^®  but  for  this  purpose  a  resulting  use  in  the  first  taker 

•8  Shelley's  Case,  1  Coke,  88b,  93b;  Moore,  130.  A  good  discussion  of 
the  case  will  be  found  In  Challls,  Real  Prop.  123. 

»4  Kleppner  v.  Laverty,  70  Pa.  St,  70;  Carson  v.  Fuhs,  131  Pa.  St  256, 
18  Atl.  1017;  Butler  v.  Huestis,  68  111.  594;  Hageman  v.  Hageman,  129  111. 
164,  21  N.  E.  814;  Leathers  v.  Gray,  101  N.  C.  162,  7  S.  B.  657;  Waters 
V.  Lyon,  141  Ind.  170,  40  N.  B.  662;  Taney  v.  Fahnley,  126  Ind.  88,  25  N. 
B.  882;  Langley  v.  Baldwin,  1  Eq.  Cas.  Abr.  185.  Cf.  Turman  v.  White,  14 
B.  Mon.  (Ky.)  560;  Pratt  v.  Leadbetter,  38  Me.  9;  Hamilton  v.  Wentworth, 
58  Me.  101;    Perrin  v.  Blake,  1  W.  Bl.  672.    Bue  see  note  on  this  case  in 

5  Gray,  Cas.  Real  Prop.  99. 

»o  Ogden's  Appeal,  70  Pa.  St  501;  Hughes  v.  Nlcklas,  70  Md.  484,  17 
Atl.  398;    Seeger  v.  Leakln,  76  Md.  500,  25  Atl.  862;    Home  v.  Lyeth,  4  Har. 

6  J.  (Md.)  431. 

»«  Adams  v.  Guerard,  29  Ga.  651;    Moor  v.  Parker,  4  Mod.  316. 


§  174)  RULE  IN  Shelley's  case.  297 

is  sufiBcient.®^  But  if  one  limitation  is  in  a  will,  and  the  other  in 
a  codicil  to  the  will,  the  rule  applies.®*  If  the  word  'Tieirs"  is 
added  to  the  first  word  "heirs,"  as  where  the  limitation  is  to  A.  for 
life,  remainder  to  his  heirs  and  their  heirs  forever,  the  second  word 
"heirs"  is  of  no  effect,  and  A.  takes  a  fee  simple.^®  The  rule  oper- 
ates upon  limitations  of  equitable  estates  as  well  as  of  legal,  but 
both  the  remainder  and  the  particular  estate  must  be  of  the  same 
kind.^®°  In  a  devise,  the  word  "children,"  "sons,"  or  "issue"  may 
be  equivalent  to  the  word  "heirs";  and,  if  such  appears  to  be  the 
intention  of  the  testator,  the  rule  will  operate  the  same  as  if  the 
word  "heirs"  had  been  used.^"^  On  the  other  hand,  the  word  "heirs" 
may  be  used  as  a  word  of  purchase,  where  it  designates  certain  as- 
certained pereons,  as  children.  In  these  cases  the  rule  does  not 
apply,  and  the  person  designated  as  heir  takes  a  remainder.^*'^  Nor 
is  the  rule  applicable  when  the  remainder  is  limited  to  the  heirs 
of  another  than  the  person  who  takes  the  particular  estate;  for 
instance,  where  a  life  estate  is  given  to  A,,  with  a  remainder  to  the 
heirs  of  A.  and  B.,  his  wife.^°*  An  express  direction,  in  the  deed 
or  will  containing  a  limitation  of  a  form  within  the  rule  in  Shelley's 
Case,  that  the  rule  shall  not  operate,  will  be  ineffectual.  And  the 
one  who  takes  the  preceding  estate  may  convey  a  fee  simple,  or 
a  fee  tail,  as  the  case  may  be,  without  regard  to  the  heirs. ^''*     And 

87  Pibus  V.  Mitford,  1  Vent  372. 

8  8  Hayes  v.  Foorde,  2  W.  Bl.  698. 

8  0  Mills  V.  Seward.  1  Johns.  &  H.  733. 

100  Croxall  v.  Shererd,  5  Wall.  268;  Ward  v.  Amory,  1  Curt.  419,  Fed. 
Cas.  No.  17,146;  Baile  v.  Coleman,  2  Vern.  670;  Garth  v.  Baldwin,  2  Ves. 
Sr.  646. 

101  Jackson  v.  Jackson,  127  Ind.  346,  26  N.  E.  897;  Roe  v.  Grew,  2  Wils. 
8^;  Doe  v.  Cooper,  1  East,  229.  But  see  Adams  v.  Ross,  30  N.  J.  Law,  50.'5; 
Henderson  v.  Henderson,  64  Md.  185,  1  Atl.  72. 

102  Righter  V.  Forrester,  1  Bush  (Ky.)  278;  Mitchell  v.  Simpson,  88  Ky. 
125,  10  S.  W.  872;  Papillon  v.  Voice,  2  P.  Wms,  471;  Jordan  v.  Adams.  9 
C.  B.  (N.  S.)  483;  Cowell  v.  Hicks  (N.  J.  Ch.)  30  Atl.  1091.  But  see  Jesson 
V.  Wright,  2  Bligh,  1. 

103  Shaw  V.  Robinson,  42  S.  C.  342,  20  S.  E.  161;  Frogmorton  v.  Wharrey, 
2  W.  Bl.  728.     Cf.  Archer's  Case,  1  Coke,  66b. 

104  Cf.  Thong  V.  Bedford,  4  Maule  &  S.  862.  But  see  Jenkins  v.  Jenkins, 
96  N.  C.  254,  2  S.  E.  522;  Fields  v.  Watson,  23  S.  O.  42;  Earnhart  v.  Eam- 
hart,  127  Ind.  397,  26  N.  E.  895. 


298        ESTATES    AS    TO    TIME    OF    ENJOYME.N'I FUTURE    ESTATES.        (Cll.    11 

the  heirs  will  take  the  estate  by  inheritance  only  in  case  he  does  not 
dispose  of  it  in  his  lifetime,  or  by  will.  In  some  states  the  rule  in 
Shelley's  Case  has  been  abolished  by  statute/"'  and  the  heirs  take 
a  contingent  remainder,  according  to  the  form  of  the  limitation.**" 

FUTURE  ESTATES  UNDER  THE  STATUTE  OP  USES, 

175.  Future  estates  created  under  the  statute  of  uses  are, — 

(a)  Future  uses  (p.  298). 

(b)  Springing  uses  (p.  299). 

(c)  Shifting  uses  (p.  300). 

As  has  already  been  seen,  after  the  Introduction  of  uses  it  be- 
came possible  to  create  estates  in  land  which  could  not  be  raised 
at  common  law.*°^  Before  the  statute  of  uses,  the  owner  of  land 
could  enfeoff  another  in  fee  to  hold  for  the  use  of  the  feoffor  for 
life,  and  after  his  death  to  the  use  of  a  third  person,  etc.  After 
the  passage  of  the  statute  of  uses,  the  legal  title  in  such  cases 
was  executed  in  the  beneficiaries, — that  is,  if  the  estate  was  vested,— 
and  contingent  estates  were  executed  as  soon  as  they  becan>e 
vested,  and  in  this  way  legal  estates  could  be  created  which  were 
impossible  before  the  statute.  Although  freeholds  could  not  be 
made  to  commence  in  future  at  common  law,  future  uses  were 
recognized  before  the  statute  of  uses,  and  continued  to  be  after 
its  passage.^°^  In  some  of  the  books  there  is  a  great  deal  of  dis- 
cussion as  to  where  the  seisin  was  in  case  of  future  uses,  but  this 
refinement  is  now  of  no  value.**" 

SAME— FUTURE  USES. 

176.  Future  uses  are  uses  -which  take  effect  as  remainders. 

Uses  which  take  effect  as  remainders  are  most  properly  called 
future  uses,  though  the  term  "contingent  uses"  is  often  applied 

108  1   stlm.  Am.   St.  Law,  §  1406. 

10 «  Richardson   v.   Wheatland,  7  Mete.   (Mass.)   169;    Moore  v.   Llttel,   41 
N.  Y.  66. 
lOT  Ante,  p.  254. 

108  Welsh  V.  Foster,  12  Mass.  93;   Wyman  v.  Brown,  50  Me.  139. 
io»  See  Brent's  Case,  3  Dyer,  340a;   Chudlelgh's  Case,  1  Coke,  120. 


§    177)  8PRINGIN0   USES.  299 

to  them.  This  Is  incorrect,  however,  since  such  uses  may  take 
effect  as  vested  remainders  as  well  as  contingent.^^"  Remain- 
ders arising  under  the  statute  of  uses  have  the  same  incidents 
as  those  at  common  law.^^*  A  future  use  must  have  a  preceding 
particular  estate  to  support  it,  and  must  not  take  effect  in  dero- 
gation of  that  estate.  If  these  requisites  fail,  the  limitation 
will  take  effect  as  a  springing  or  shifting  use.**'  Contingent 
uses  may  be  defeated  the  same  as  contingent  remainders.*** 

SAME— SPRINGING  USES. 

177.  Springing  uses  are  uses  -which  take  effect  -without  any 
preceding  estate  to  support  them. 

"A  springing  use  is  a  use,  either  vested  or  contingent,  limited 
to  arise  without  any  preceding  limitation."  ***  Springing  uses 
do  not  defeat  a  preceding  particular  estate.**'  When  there  is 
a  limitation  of  a  springing  use,  there  is  also  a  resulting  use  in 
fee  in  the  grantor,  until  the  springing  use  tal^es  effect,  so  that 
in  reality  the  springing  use  operates  on  the  preceding  resulting 
use  in  the  grantor  in  the  same  way  that  a  shifting  use  does 
upon  the  particular  estate  which  precedes  it.**"  An  example 
of  a  springing  use  is  a  limitation  to  the  use  of  B.  and  his  heirs 
after  the  death  of  A.**^  A  springing  use  may  be  contingent  as 
well  as  vested.* ^^ 

110  Adams  v.  Terre-Tenants  of  Savage,  2  Salk.  679;  Davies  v.  Speed,  Id.  675; 
Southcote  V.  Stowell,  1  Mod.  238;  Cole  v.  Sewell,  4  Dru.  &  War.  1;  Gore 
V.  Gore,  2  P.  Wms.  28. 

m  2  Washb.  Real  Prop.  (5th  Ed.)  663;  Rogers  v.  Fire  Co.,  9  Wend.  (N. 
T.)  611;  State  v.  Trask,  6  Vt.  355.  So  they  cannot  be  limited  after  an  estate 
for  years.  Adams  v.  Savage,  2  Ld.  Raym.  854;  Rawley  v.  Holland,  22  Vin. 
Abr.  189,  pi.  11. 

112  Gore  V.  Gore,  2  P.  Wms.  28;    Davies  v    Speed,  2  Salk.  675. 

118  See  Davies  v.  Speed,  2  Salk.  675. 

11*  Cornish,  Uses,  91. 

iiBMcKee  v.  Marshall  (Ky.)  5  S.  W.  415.  Wyman  v.  Brown,  50  Me.  139; 
Egerton  v.  Brownlow,  4  H.  L.  Cas.  1,  205. 

118  Shapleigh  v.  Pilsbury,  1  Me.  139;   Nicolls  v.  Sheffield,  2  Brown,  Ch.  215. 

iiT  Jackson  v.  Dunsbach,  1  Johns.  Cas.  (N.  Y.)  92;  Mutton's  Case,  8  Dyer, 
274. 

118  Shapleigh  v.  Pilsbury,  1  Me.  271, 


300        KSTATE3   A3    TO    TIME   OF   BNJOYMBNT FUTURE    ESTATES.       (Ch.   11 


SAME— SHIFTING  USES. 

178.  Shifting  uses  are  uses  which  take  effect  in  derogation 

of  a  preceding  estate. 

Shifting  uses  are  also  called  secondary  uses,  and  are  future 
limitations  which  cut  short  a  preceding  estate;  ^"  for  example,  a 
limitation  to  A.  and  his  heirs,  and  after  B.  returns  from  Rome  to 

0.  The  estate  which  C.  takes  when  B.  returns  from  Rome  cuts  off 
the  preceding  estate  in  A.  By  means  of  a  shifting  use,  it  is 
possible  to  limit  a  fee  after  a  fee.^^"* 

rUTURE  ESTATES  UNDER  THE  STATUTE  OF  WILLS- 
EXECUTORY  DEVISES. 

179.  Executory  devises  are  future  estates  created  by  de- 

vise under  the  statute  of  -wills,  -which  cannot  take 
effect  as  remainders. 

180.  Executory  de-vises  may  be  either  springing  or  shift- 

ing. 

The  statute  of  uses  prohibited  the  alienation  of  real  property  by 
will,  which  had  been  possible  before  the  statute  by  means  of 
uses.^^^  The  inconvenience  produced,  however,  was  so  great 
that  it  led  to  the  enactment  of  the  statute  of  wills  ^^^  before 
those  decisions  which,  as  was  seen,  virtually  repealed  the  statute 
of  uses.^*'  By  the  very  liberal  provisions  of  the  statute  of  wills, 
it  was  possible  to  create  any  future  interest  in  realty  which 
could  be  created  by  means  of  uses  before  the  statute  of  uses;  and 
the  construction  placed  on  such  limitation  by  the  courts  is  more 

119  Fogarty  v.  Stack,  86  Tenn.  610,  8  S.  W.  846;    Battey  v.  Hopkins,  6  R. 

1.  443;  Buckworth  v.  Thirkell,  3  Bos.  &  P.  652,  note;  Mutton's  Case.  3 
Dyer,  274;  Carwardlne  v.  Carwardine,  1  Eden,  28,  34;  Egerton  v.  Brown- 
low,  4  H.  Li.  Cas.  1. 

120  Battey  v.  Hopkins,  6  R.  I.  443.     And  see  cases  in  last  note. 
"1  See  Dig.  Hist.  Real  Prop.  (4th  Ed.)  375. 

122  82  Hen.  VIH.  c.  L 

123  Ante,  p.  254. 


§§    179-180)  EXECUTORY    DEVISES.  301 

liberal  than  the  construction  of  future  uses,  owing  to  the  attempts 
of  the  courts  to  carry  out  the  intentions  of  the  testators."*  These 
executory  limitations  arising  under  wills  are  called  executory 
devises.  An  executory  devise  may  be  by  direct  gift  to  the  devisee, 
or  it  may  be  through  the  medium  of  a  declaration  of  uses.""^  So, 
too,  remainders  may  be  limited  by  devise."'  One  or  more  re- 
mainders may  be  followed  by  an  executory  devise,  but  there  can- 
not be  a  remainder  after  an  executory  devise,  all  such  limitations 
being  construed  as  executory  devises  also.  These  are  in  fact  suc- 
cessive executory  demises,  like  successive  remainders.  When, 
however,  the  first  devise  vests,  all  the  others  will  vest  as  re- 
mainders that  can,"^  Executory  devises  are  presumed  to  be 
devises  in  praesenti,  rather  than  limitations  of  future  estates,  when- 
ever it  is  possible  to  so  construe  them,  so  thai  if  they  do  not  take 
effect  at  the  death  of  the  testator  they  will  lapse."*  But  slight 
circumstances  are  in  the  later  cases  held  sufficient  to  rebut  this 
presumption.^^®  Like  other  executory  limitations,  executory  de- 
Tises  may  be  either  vested  or  contingent,  and  a  destruction  of  the 
first  devise  does  not  defeat  subsequent  ones."°  It  is  not  necessary 
to  state  the  distinctions  between  executory  devises  and  remainders, 
as  they  have  already  been  considered,"^  but  it  should  be  borne  in 

124  Annable  v.  Patch,  3  Pick.  (Mass.)  360;  Scott  v.  West,  63  Wis.  529,  24 
N.  W.  161,  and  25  N.  W.  18;  Smith  v.  Kimbell,  153  111.  368,  38  N.  E.  1029; 
Rupp  V.  Eberly,  79  Pa.  St.  141;  Wood  v.  Wood,  5  Paige  (N.  Y.)  596;  Smith 
V.  Bell,  6  Pet.  68. 

12  B  Crerar  v.  Williams,  145  111.  625,  34  N.  E.  467. 

126  Watson  V.  Smith,  110  N.  C.  6,  14  S.  E.  640;  Nightingale  v.  Burrell,  15 
Pick.  (Mass.)  104;  Hall  v.  Priest,  6  Gray  (Mass.)  18;  Manderson  v.  Lukens. 
23  Pa.  St.  31. 

127  Brownsword  v.  Edwards,  2  Ves.  Sr.  243;  Doe  v.  Howell,  10  Barn.  »&: 
C.  191;    Pay's  Case,  Cro.  Eliz.  878. 

128  Scott  V.  West,  63  Wis.  529,  24  N.  W.  161,  and  25  N.  W.  18;  Kouvalinka 
T.  Geibel,  40  N.  J.  Eq.  443,  3  Atl.  260;    Jones  v.  Webb,  5  Del.  Ch.  132. 

129  Annable  v.  Patch,  3  Pick.  (Mass.)  360;  Rupp  v.  Eberly,  79  Pa,  St  141; 
Darcus  v.  Crump,  6  B.  Mon.  (Ky.)  363;   Napier  v.  Howard,  3  Ga.  192. 

180  Moffat's  Ex'rs  v.  Strong,  10  Johns.  (N.  Y.)  12;  Ford  v.  Ford,  70  Wis. 
19,  33  N.  W.  188;  Smith  v.  Hunter,  23  Ind.  580;  Randall  v;  Josselyn,  59  Vt. 
557,  10  Atl.  577;  Den  v.  Hance,  11  N.  J.  Law,  244;  Mathis  v.  Hammond.  6 
Rich.  Eq.  (S.  C.)  121. 

131  Ante,  p.  285.  Of.  Plunket  v.  Holmes,  1  Lev.  11;  Doe  v.  Scudamore, 
2  Bos.  &  P.  289. 


302        ESTATES    AS   TO   TIME    OF   ENJOYMENT FUTURE    ESTATES.       (Cll.    11 

mind  that  there  may  be  alternate  remainders  in  fee  which  in  form  are 
much  lilfe  executory  devises.^"  An  estate  limited  to  take  effect 
after  a  fee  tail  is  always  construed  as  a  remainder,  if  possible,  rather 
than  as  an  executory  devise.^ ^' 

It  has  already  been  stated  that  executory  devises  may  be  either 
springing  or  shifting,  but  the  distinction  is  seldom  used  in  the 
books.  A  shifting  devise  may  divest  the  preceding  estate  in  part 
only,  and  in  cases  where  the  first  taker  is  given  a  fee,  with  a  shift- 
ing devise  to  another  of  a  life  estate,  the  question  often  arises 
whether  the  devise  will  defeat  the  prior  estate  altogether,  or  only 
to  the  extent  of  the  life  estate.  The  decision  in  all  of  these  cases 
must  depend  upon  the  intention  of  the  testator.^"* 

Executory  devises  cannot  be  defeated  by  the  tenant  of  the 
prior  estate.^"  Where  an  estate  is  divested  by  a  devise  over  on  a 
contingency,  if  the  contingency  happens  the  first  estate  is  divested,, 
though  the  devise  over  be  void.^"' 

INCIDENTS  OF  FUTURE  ESTATES. 

181.  The  rights  of  the  owners  of  future  estates  are  correl- 
atives of  the  duties  of  the  tenants  of  the  preceding 
estates. 

i»2  See  Wilson  v.  White,  109  N.  Y.  59,  15  N.  E.  749;  Taylor  v.  Taylor,  63 
Pa.  St.  481;    Dunwoodie  v.  Reed,  3  Serg.  &  II.  (Pa.)  435. 

138  Allen  V.  Trustees,  102  Mass.  262;  Parl<er  v.  Parlier,  5  Mete.  (Mass.) 
134;  Hawley  v.  Northampton,  8  Mass.  3;  Wolfe  v.  Van  Nostrand,  2  N.  Y.  436; . 
Reinoehl  v.  Shirk,  119  Pa.  St.  108,  12  Atl.  806;  Titzell  v.  Cochran  (Pa.  Sup.) 
10  Atl.  9;  Richardson  v.  Richardson,  80  Me.  585,  16  Atl.  250.  But  see,  for 
limitations  which  have  been  held  to  create  executory  devises,  Jackson  v. 
Chew,  12  Wheat.  153;  Richardson  v.  Noyes,  2  Mass.  56;  Lion  v.  Burtiss, 
20  Johns.  (N.  Y.)  483;  Jackson  v.  Thompson,  6  Cow.  (N.  Y.)  178;  Nicholson 
v.  Bettle,  57  Pa.  St.  384. 

18*  Gatenby  v.  Morgan,  1  Q.  B.  Div.  6S5;   Jackson  v.  Noble,  2  Keen,  590. 

185  Moffat's  Ex'rs  v.  Strong,  10  Johns.  (N.  Y.)  12;  Doe  v.  Craig,  Busb.  (N. 
C.)  169;    Pells  v.  Brown,  Cro.  Jac.  590.     But  see  Gray,  Perp.  §§  142,  147. 

188  Doe  v.  Eyre,  5  C.  B.  713;  Robinson  v.  Wood,  27  Law  J.  Ch.  726.  See, 
also,  Murray  v.  Jones,  2  Yes.  &  B.  313;  Avelyn  v.  Ward,  1  Ves.  Sr.  420; 
Lomas  V.  Wright,  2  Mylne  &  K.  769;  Tarbuck  v.  Tarbuck,  4  Law  J.  Ch. 
129. 


§  182)  TENURE  OF  FUTURE  ESTATES.  30S 

The  rights  and  duties  of  the  owners  of  future  estates  are  the 
correlatives  of  the  rights  and  duties  of  the  owners  of  the  estates 
which  precede  thera,  and  these  have  already  been  considered  in 
treating  of  the  different  estates  in  possession.^"  So,  too,  the  right 
to  dower  and  curtesy  in  future  estates  has  been  treated  of  in  the 
chapters  on  those  subjects.^^*  And  in  other  connections  it  has 
been  seen  that  the  tenant  of  an  estate  which  precedes  a  future 
estate  has  no  claim  on  the  owner  of  the  latter  for  improvements.^ ^^ 
The  methods  by  which  the  different  future  estates  may  be  destroyed 
have  been  touched  upon  briefly  in  connection  with  reversions^" 
and  remainders,^"  and  as  to  the  other  it  may  be  said  that  no  act  of 
the  tenant  of  the  particular  estate  can  destroy  the  future  estate.'" 

SAME— TENURE  OF  FUTURE  ESTATES. 

182.  There  is  a  relation  of  tenure  between  the  owner  of  a 
future  estate  and  the  tenant  of  the  preceding  estate 
only  in  the  ease  of  a  reversion. 

Possession  by  the  tenant  of  the  particular  estate  is  in  no  case 
adverse  to  the  owner  of  the  future  estate,  and  so  the  former  can- 
not disseise  the  latter.'"  In  reversions,  tenure  exists  between  the 
tenant  of  the  particular  estate  and  the  reversioner.'**  In  case 
the  particular  estate  is  a  freehold,  the  tenant  of  the  particular 
estate  has  the  seisin,  but,  when  the  particular  estate  is  less  than 
a  freehold,  the  actual  seisin  is  in  the  reversioner.'"     In  remain- 

13T  Ante,  pp.  49,  58,  134. 

188  Ante,  pp.  79,  91. 

189  Ante,  p.  61. 

140  Ante,  p.  281. 

141  Ante,  pp.  289,  293. 

142  Archer's  Case,  1  Coke,  66b;  Chudlelgh's  Case,  Id.  120.  And  as  to 
executory  devises,  see  ante,  p.  302. 

143  Jackson  v.  Schoonmaker,  4  Johns.  (N.  Y.)  390;  Jackson  v.  Sellick,  8 
Johns.  (N.  Y.)  262;  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74;  Davis  v.  Dickson, 
92  Pa.  St.  365;  Miller  v.  Shackleford,  3  Dana  (Ky.)  289;  Meraman's  Heirs 
V.  Caldwell's  Heirs,  8  B.  Mon.  (Ky.)  32;  Stubblefield  v.  Menzies,  8  Sawy.  41, 
11  Fed.  268. 

144  2  Washb.  Real  Prop.  (5th  Ed.)  803. 

140  2  Washb.  Real  Prop.  (5th  Ed.)  804;    WUliams,  Real  Prop.  (17th  Ed.)  387. 


304        ESTATES    AS    TO    TIME   OF    ENJOYMENT FUTURE    ESTATES.        (Ch.    11 

ders  there  is  no  tenure  between  the  tenant  of  the  particular  estate 
and  the  remainder-man,  because  both  hold  under  the  same  person.**' 
In  future  uses  and  de\ises,  no  relation  of  tenure  exists. 

SAME— WASTE. 

183.  Waste  by  the  tenant  in  possession  VTill  be  restrained 
in  favor  of  the  owner  of  a  future  estate,  unless  that 
is  a  contingent  remainder,  -which  may  be  defeated 
by  the  tenant  of  the  preceding  estate. 

Subject  to  the  following  exceptions,  waste  by  the  tenant  of  the 
particular  estate  will  be  restrained  in  favor  of  the  owner  of  the 
future  estate.**^  And,  for  injuries  to  the  corpus  of  the  estate 
committed  by  strangers,  both  the  owner  of  the  particular  estate 
and  of  the  future  estate  may  have  actions  according  to  their  inter- 
ests.**' At  common  law,  while  waste  would  be  restrained  in  favor 
of  the  owner  of  a  vested  remainder,  it  would  not  be  for  the  owner  of 
a  contingent  remainder,  because  the  tenant  of  the  particular  estate 
could  defeat  the  contingent  remainder  absolutely.**®  This  was  not 
the  case,  however,  when  there  was  immediate  limitation  to  trustees 
to  preserve  the  contingent  remainders,  because  the  tenant  then  had 
no  power  to  destroy  the  remainders.* °°  As  soon  as  a  contingent  re- 
mainder becomes  vested,  waste  would  be  restrained;  and  it  will  now, 
in  these  jurisdictions  where  the  power  to  destroy  contingent  remain- 
ders has  been  abolished.  Springing  and  shifting  uses  and  executory 
devises  are  indestructible  by  the  tenant  in  possession,  and  so  he  will 
be  enjoined  from  committing  waste;  but,  when  the  limitation  is 
after  a  fee,  ordinary  waste  by  the  owner  of  the  fee  will  not  be  re- 
strained, but  equitable  waste  will  be.*"^* 

1*8  Van  Densen  v.  Young,  29  N.  Y.  9;  Hill  v.  Roderick,  4  Watts  &  S.  (Pa.) 
221. 

i*T  See  ante,  p.  66.    Livingston  v.  Reynolds,  2  Hill  (N.  Y.)  157. 

1*8  Foot  V.  Dickinson,  2  Mete.  (Mass.)  611;  Bates  v.  Shraeder,  13  Johns. 
(N.  Y.)  260;  Elliot  v.  Smith,  2  N.  H.  430;  Chase  v.  Hazelton,  7  N.  H.  171. 
But  see  Peterson  v.  Clark,  15  Johns.  (N.  Y.)  205. 

1*9  Hunt  V.  Hall,  37  Me.  363;    Bacon  v.  Smith,  1  Q.  B.  345. 

iBo  See  ante,  p.  293. 

161  Matthews  v.  Hudson,  81  Ga.  120.  7  S.  E.  286;  Robinson  v.  Litton,  3 
Atk.  209.    As  to  what  constitutes  equitable  waste,  see  ante,  p.  62. 


§    184)  ALIENATION.  806 


SAME— ALIENATION. 

184.  Any  future  estate  may  be  transferred,  if  the  person 
■who  is  to  take  is  ascertained. 

The  transfer  of  a  reversion  after  a  term  of  years  has  already 
been  considered.'"  Estates  in  reversion  may  be  conveyed  by  deed 
or  by  devise,  and  the  transfer  may  be  of  part  of  the  reversion 
only.'^^  At  common  law,  however,  a  reversion  conld  not  be  con- 
yejed  by  feoffment,  unless  the  particular  estate  was  less  than  a 
freehold.'"  Reversions  may  be  conveyed  by  any  form  of  deed 
operating  under  the  statute  of  uses. 

A  vested  remainder  may  be  transferred  by  the  owner  in  the 
same  way,  and  under  the  same  conditions  as  to  the  kind  of  con- 
veyance, as  a  reversion.'"  But  a  contingent  remainder  at  common 
law  could  only  be  released  or  conveyed  by  will,  though  transfers 
of  contingent  remainders  are  now  upheld.'^®  A  contingent  remain- 
der, however,  in  which  the  contingency  consists  in  the  uncertainty 
of  the  person  who  is  to  take,  can  in  no  case  be  transferred  until 
such  person  is  ascertained.'"  The  same  rule  applies,  also,  to  spring- 
ing and  shifting  uses  and  executory  devises.'^*  At  common  law, 
executory  devises  are  not  subject  to  alienation.'"  In  equity,  how- 
ever, these  interests  may  be  devised  or  assigned  if  the  person  entitled 
is  in  being  and  ascertained.'*"* 

1B2  See  ante,  p.  147. 
183  Doe  V.  Cole,  7  Bam.  &  C.  243. 
154  Co.  Litt.  48b. 

IBB  Stewart  v.  Neely,  139  Pa.  St.  309,  20  All.  1002;  Robertson  t.  Wilson. 
88  N.  H.  48;    Brown  v.  Fulkerson,  125  Mo.  400,  28  S.  W.  632. 

156  Kenyon  v.  Lee,  94  N.  Y.  563;  Ackerman's  Adm'rs  v.  Vreeland's  Ex'r, 
14  N.  J.  Eq.  23,  29;  Godman  v.  Simmons,  113  Mo.  122,  20  S.  W.  972;  Hall  v. 
Chaffee,  14  N.  H.  216. 

157  Havens  v.  Land  Co.,  47  N.  J.  Eq.  36.5,  20  Atl.  497. 

IBS  Young  V.  Young,  89  Va.  675,  17  S.  E.  470;  Nutter  v.  Russell.  3  Mete. 
(Ky.)  163;    Jacob  v.  Howard  (Ky.)  22  S.  W.  332;    Hall  v.  Chaffee.  14  N.  H.  21«. 

i6»  Hall  V.  Chaffee,  14  N.  H.  215;    Lampet's  Case,  10  Coke,  46b. 

i«o  Bayler  v.  Com.,  40  Pa.  St.  37;  Wright  v.  Wright,  1  Ves.  Sr.  409;  Crofts 
V.  Middleton,  8  De  Gex,  M.  &  G.  192. 

REAL  PROP. — 20 


306         ESTATES    AS   TO   TIME   OF    ENJOYMENT FUTURE    ESTATES.       (Ch.   11 


SAME— DESCENT  OF  FUTURE  ESTATES. 

185.  When  the  person  who  is  to  take  a  future  estate  is  as- 
certained, it  descends,  on  his  death  intestate,  to  his 
heirs,  except: 
EXCEPTION — In  states  where  the  rule  has  not  been 
changed  by  statute,  a  reversion  descends  only  to 
those  who  can  trace  their  descent  from  the  one  last 
seised. 

A  reversion  descends  to  the  heirs  of  the  reversioner,  but  at  com- 
mon law  it  was  subject  to  the  rule  that  no  one  could  take  a  rever- 
sion as  heir  unless  he  could  trace  his  descent  as  heir  of  the  one 
last  actually  seised  of  the  reversion.^"  If  the  reversion  is  trans- 
ferred the  transferee  becomes  a  new  stock,  from  whom  subsequent 
persons  claiming  the  reversion  as  heirs  must  trace  their  descent.^" 
This  rule  has  been  abolished  in  many  states  by  statute."^  Ke- 
mainders,  future  estates  under  the  statute  of  uses,  and  executory 
devises  descend  to  the  heirs  of  their  owners,  except  in  cases  where 
the  person  who  is  to  take  is  not  ascertained.^®*  The  owner  may 
dispose  of  his  estate  by  will,  and  cut  off  any  chance  of  his  heirs  in- 
heriting. The  future  estate,  in  order  that  it  may  descend,  must  in 
any  case  be  of  sufacient  quantity;  that  is,  it  must  be  an  estate  of 
inheritance. 

POWERS. 

186.  A  power  is  an  authority  to  create  some  estate  in 
lands,  or  a  charge  thereon,  or  to  revoke  an  exist- 
ing estate  in  the  same  way  that  the  owner,  grant- 
ing the  power,  might  himself  do. 

i«i  2  Bl.  Comm.  209;  Miller  v.  Miller,  10  Mete.  (Mass.)  393;  Cook  r.  Ham- 
mond, 4  Mason,  467,  Fed.  Cas.  No.  3,159. 

182  2  Washb.  Real  Prop.  (5th  Ed.)  803;   West  v.  Williams,  15  Ark,  682. 

183  Preston  v.  Carr,  29  N.  H.  453;  Doe  v.  Roe,  2  Har.  (Del.)  103;  Cook  v. 
Hammond,  4  Mason,  467,  Fed.  Cas.  No.  3,159. 

i«4  Barnitz's  Lessee  v.  Casey,  7  Cranch,  456;  Ackless  v.  Seekright,  1  IlL 
76;   Medley  v.  Medley,  81  Va.  265. 


§§  187-189)  POWERS.  307 

187.  The  one  who  creates  a  power  is  called  the  donor. 

188.  The    one    to   whom   a  pow^er  is   given  is  called  the 

donee. 

189.  The  one  for  whose  benefit  the  power  is  exercised  is 

called  the  appointee. 

In  addition  to  the  powers  above  defined,  which  are  usually  called 
simply  powers,  we  have  "common-law  powers,"  such  as  powers  given 
by  a  will  to  executors  to  sell  land;  "statutory  powers,"  which  are  au 
thorities  conferred  by  legislative  act;  and  "powers  of  attorney," 
to  be  subsequently  considered.^*"*     Simple  powers  over  real  estate 
are  used  principally  in  limiting  family  settlements,  and  are  seldom 
employed  in  the  United  States.    In  New  York,  Michigan,  and  some 
other  states,   powers,   as  they  exist  at   common  law,   have  been 
abolished  by  statute,  and  another  system,  in  many  respects  prac- 
tically the  same,  has  been  established.^*®     And  in  these  states^ 
though  trusts  have  been  abolished,  limitations  in  the  form  of- trusts 
may  take  effect  as  powers.^®^ 

A  power  is  simply  a  right  to  create  or  change  an  estate  in 
lands.^**  Before  the  statute  of  uses,  lands  could  be  conveyed  to 
be  held  to  such  uses  as  the  grantor  might  declare;  and,  after  the 
statute,  such  a  right  to  declare  the  uses  of  land  was  called  a 
pcwer,^*'  and  the  uses  so  declared  were  executed  by  the  statute, 
and  took  effect  as  if  they  had  been  limited  in  the  original  instru- 
ment creating  the  power.^^°  But  if  a  limitation  is  in  the  form, 
"to  and  to  the  use  of  A.,  to  such  uses  as  he  may  appoint,"  or  "to  A., 
to  the  use  of  A.,"  etc.,  the  uses  which  he  may  appoint  will  not  be 
executed  by  the  statute,  on  the  principle  that  the  statute  will  not 
execute  a  use  upon  a  use.^''^     The  instrument  creating  the  power 

16  5  See  post,  p.  431. 
188  1  stim.  Am.  St  Law,  §§  1650-1659. 
187  1  Stim.  Am.  St.  Law,  §  1703(8). 

18  8  Burleigh  v.  Clough,  52  N.  H.  267;  Rodgers  v.  Wallace,  5  Jones  (N.  C.) 
181. 

169  Harrison  v.  Battle,  1  Dev.  &  B.  Eq.  (N.  C.)  213. 

170  Rodgers  v.  Wallace,  5  Jones  (N.  C.)  181;  Smith  v.  Garey,  2  Dev.  & 
B.  Eq.  (N.  C.)  42;    Leggett  v.  Doremus,  25  N.  J.  Eq.  122. 

171  See  ante,  p.  254. 


308         ESTATES    AS    TO    TIME    OP    ENJOYMENT FUTURE    ESTATES.       (Ch.   11 

does  not  {jonorally  limit  the  uses,  but  merely  gives  an  authority 
to  create  them. 

CommortrLaxo  Pomers. 

The  only  instances  of  powers  over  land  that  have  effect  by  the 
common  law,  or  "common-law  powers,"  are  powers  given  by  will 
to  the  testator's  executors  to  sell  his  real  estate  in  order  to  raise 
money  for  the  payment  of  his  debts,  or  of  legacies  given  by  the 
will ;  the  land  not  being  devised  for  the  purpose  to  the  executors, 
but  devolving,  until  the  power  is  exercised,  upon  the  testator's  heir 
at  law.  Such  directions  to  executors  were  recognized  in  the  early 
law  as  valid  in  wills  of  lands,  which,  by  custom,  were  devisable 
at  common  law;  and  after  the  extension  of  the  testamentary  power 
by  statute,  in  the  reign  of  King  Henry  VIII.,  their  validity  in  wills 
generally  was  established.  Upon  an  alienation  in  pursuance  of  such 
a  power,  the  estate  passes  to  the  alienee  by  force  of  the  will,  as  if 
he  had  been  named  therein  as  devisee,  the  exercise  of  the  power 
being  merely  the  nomination  of  the  person  who  is  to  take  the 
estate  under  the  will.  In  this  respect  a  mere  power  of  sale  given 
to  executors  differs  from  a  devise  of  land  to  the  executors  in  trust 
^or  sale;  for  under  such  a  devise  the  testator's  estate  in  the  land  vests 
in  the  executors  as  trustees,  and  the  purchaser  takes  by  the  con- 
veyance from  them.^^' 

I*owers  Distinguished  from  Estates. 

Powers  are  distinguished  from  estates,  In  that  the  former  are 
mere  rights  over  land,  and  not  interests  in  it.^^'  A  power  may, 
however,  be  coupled  with  an  interest  in  the  land.^^*  The  owner 
of  an  estate  has  power  to  alienate  it,  in  connection  with  the  other 
incidents  of  the  estate;  but  the  owner  of  a  power  has  merely  a 
right  to  alienate,  without  any  other  right  A  power  and  an  estate 
In  the  same  land  may  co-exist.  For  example,  a  man  may  be  given 
an  estate  for  life,  with  a  general  power  of  alienation,  and  in  default 
of  appointment  a  remainder  in  fee.  In  such  case  he  could  transfer 
a  fee  simple  in  the  lands,  either  by  the  exercise  of  the  power,  op 

17  2  Edw.  Prop.  In  Land  (2d  Ed.)  203. 

ITS  Eaton  v.  Straw,  18  N.  H.  320;    Sewall  v,  Wtlmer,  132  Mass.  131. 
1T4  Peter  v.  Beverly,  10  Pet.  532;    Osgood  v.  Franklin,  2  Johns.  Ch.  (N.  T.) 
1;  Shearman  v.  Hicks,  14  GraL  (Vs.)  9S. 


§§    190-191)  CREATION    OF    POWERS.  309 

ont  of  the  estate  which  he  owns,  in  default  of  appointment.*^'  In 
wills  it  is  many  times  difficult  to  ascertain  whether  a  testator 
meant  to  dispose  of  his  estate,  or  to  exercise  a  power  which  he 
had  in  the  lands.  In  such  cases  the  testator's  intention  governs, 
as  far  as  it  can  be  ascertained.*^'  Under  deeds  the  same  diflScuIty 
seldom  arises,  because  technical  words  are  used  in  limiting  the 
estates.  These  are,  however,  questions  of  construction  of  instru- 
ments, and  are  not  properly  part  of  the  law  of  real  property. 
Powers  of  Revocation  and  Appointment. 

Powers  are  generally  divided  into  powers  of  appointment,  by 
which  estates  may  be  created;  powers  of  revocation,  by  which 
estates  may  be  terminated  or  reduced;  and  powers  of  appointment 
and  revocation,  which  include  both  rights.  But  the  distinction 
is  hardly  of  much  value,  since  a  power  to  limit  new  uses  implies 
the  power  to  revoke  the  old  ones,  and  powers  of  revocation,  unless 
a  contrary  intention  expressly  appears,  include  by  implication 
powers  to  create  new  estates  in  place  of  those  defeated.*^'  A 
power  of  revocation  may  be  reserved,  in  limiting  estates,  to  revoke 
the  estates  created  either  wholly  or  in  part,  or  part  at  one  time 
and  part  at  another.*^*  Limiting  new  uses  under  a  power  of  rev- 
ocation or  appointment  is  a  revocation  of  the  old  estates,  without 
any  special  words  to  that  effect.  When  uses  are  revoked,  and 
new  ones  appointed,  there  cannot  be  another  revocation,  unless 
a  power  to  do  so  is  reserved  in  the  instrument  limiting  the  uses.*^* 

SAME— CREATION. 

190.  Powers  may  be  created 

(a)  By  deed  under  the  statute  of  uses. 

(b)  By  devise  under  the  statute  of  wills. 

191.  Technical  words  of  limitation  are  not  required. 

17  5  Phillips  v.  Brown,  16  R.  I.  279,  15  Atl.  90;  Brown  v.  Phillips,  16  R.  I. 
612,  18  AtL  249;  Lee  v.  Simpson,  34  U.  S.  572,  10  Sup.  Ct  631;  Funk  v.  Eg- 
gleston,  92  111.  515;    Logan  v.  Bell,  1  C.  B.  872. 

iT«  See  cases  cited  In  note  175. 

17  7  2  Washb.  Real  Prop.  (5tb  Ed.)  694;    Wright  v.  Tallmadge,  15  N.  Y.  307. 

17  8  Ricketts  V.  Railroad  Ca,  01  Ky.  221,  15  S.  W.  182.  See,  also,  Willis  v. 
Martin,  4  Term  R.  39. 

17  8  1  Sugd.  Powers,  243. 


310        ESTATES    AS   TO    TIME    OF    ENJOYMENT FUTURE   ESTATES.       (Ch.    11 

A  poTvcr  of  appointment  over  land  is  created  by  a  limitation, 
either  inter  vivos  or  by  will,  of  the  legal  estate  in  the  land,  as  an 
executory  interest, — or  by  a  corresponding  limitation  of  the  equi- 
table estate, — ^to  take  effect  in  possession  through  the  exercise  of 
an  authority  or  power  given  to  some  person  by  the  instrument  con- 
taining the  limitation,  or  thereby  reserved  to  the  grantor  or  his 
successors. 

Where  land  is  limited  by  will,  subject  to  a  power  of  this  class, 
an  appointment  under  the  power  takes  effect  as  an  executory 
devise.  But,  as  executory  devises  do  not  depend  for  their  operation 
on  the  statute  of  uses,  a  power  of  appointment  may  be  created  by 
will,  as  well  by  a  devise  simply  to  the  persons  or  for  the  purposes 
to  be  si>ecified  by  the  appointment  as  by  a  devise  to  uses  to  be  de- 
clared by  the  appointment.^*" 

Powers  may  be  created  by  will  or  by  deed,  and  any  words  which 
show  an  intention  of  the  donor  are  sufficient,  technical  words  as 
to  the  estates  to  be  created  by  the  power  not  beiijg  required.^ '^ 
For  example,  a  power  to  sell  in  general  would  give  a  power  to  sell 
a  fee,  if  the  donor  had  a  fee.^^* 

SAME— CLASSES  OF  POWERS  AS  TO  DONEE. 

192.  Powers  are  divided,  -with  reference  to  the  donee's  re- 

lation to  the  land  affected  by  the.po-wer,  into — 

(a)  Powers  appendant  and  in  gross  (p.  310). 

(b)  Powers  collateral,  or  naked  pow^ers  (p.  311). 

193.  POWERS  APPENDANT  AND  IN  GROSS— A  power 

may  be  given  to  a  donee  who  has   some   estate  in 

the  land  in  addition  to   the   power.     Such  powers 

are 
(a)  Appendant  w^hen  the  power  is  to  be  executed  w^holly 

or  in  part  out  of  the  estate  of  the  donee. 
Cb)  In  gross  w^hen  the  execution  of  the  pow^er  does  not 

affect  the  donee's  estate. 

i«o  Leake,  Prop.  In  Land,  377. 

181  Harris  v.  Knapp,  21  Pick.  (Mass.)  412;  Cherry  v.  Greene,  115  El.  591, 
4  N.  E.  257;    Brant  v.  Iron  Co.,  93  U.  S.  326. 

182  North  V.  Philbrook.  34  Me.  532;  Benesch  v.  Clark,  49  Md.  497;  Liefe 
y.  Saltingstone,  1  Mod.  189. 


§    19-5)  CLASSES    OF    POWERS    A3    TO   APPOINTEEg.  311 

It  is  not  necessary  that  the  donee  of  a  power  have  also  an  estate 
in  the  land  on  which  the  power  is  to  operate,  but  he  may  have,  and 
in  such  case  the  power  is  said  to  be  connected  or  coupled  with  an 
interest.  Unless  he  has  some  estate,  he  will  not  have  a  power 
coupled  with  an  interest,  although  he  does  have  an  interest  in  the 
execution  of  the  power.^®'  When  the  estates  to  be  created  by  the 
execution  of  power  must  take  effect  out  of  the  interest  in  the  lands 
held  by  the  donee,  the  power  is  said  to  be  appendant  or  ap- 
purtenant; for  example,  where  one  having  a  life  estate  is  given, 
a  power  to  make  leases  which  must  tak;e  effect  w^holly  or  in  part 
out  of  his  own  estate.^**  But,  when  the  execution  of  the  power 
will  not  affect  the  donee's  estate  in  the  lands,  the  power  is  said 
to  be  in  gross,  as  w'hen  the  owner  of  a  life  estate  has  a  power  to 
create  estates  to  begin  after  the  termination  of  his  estate.^*' 

194.  POWERS   COLLATERAL,,   OR   NAKED    POWERS— 

A  po'wer  raay  be  given  to  a  donee  "w^lio  has  no  in- 
terest in  the  land  apart  from  the  power.  Such 
pow^ers  are  called  powers  collateral,  or  naked 
pow^ers. 

A  power  collateral,  or  a  naked  power,  or  a  power  unconnected 
with  an  interest,  is  a  power  given  to  a  person  who  had  no  interest 
in  the  land  at  the  time  of  the  execution  of  the  instrument  creating 
the  power,  and  to  whom  no  estate  is  limited  by  that  instrument.^  ^' 

SAME— CLASSES  OF  POWERS  AS  TO  APPOINTEES. 

195.  Pow^ers   are  divided,  with   reference   to  the   persons 

who  may  be  appointees,  into 

(a)  General  powers  (p.  312). 

(b)  Special  powers  (p.  312). 

188  Hunt  V.  Rousmanier's  Adm'rs,  8  Wheat.  174;  Osgood  v.  Franklin.  2 
Johns.  Ch.  (N.  Y.)  1;    Coney  v.  Sanders,  28  Ga.  511. 

184  Wilson  V.  Troup,  2  Cow.  (N.  Y.)  195;  Maundrell  v.  Maundrell,  10  Ves. 
246. 

18B  Wilson  V.  Troup,  2  Cow.  (N.  Y.)  195;  Thorington  v.  Thorington,  82  Ala. 
489,  1  South.  716. 

186  Taylor  v.  Eatman,  92  N.  C.  601;  Potter  y.  Couch,  141  U.  S.  29G.  11 
Sup.  Ct  1005. 


312         ESTATES    A9    TO    TIME    OF    ENJOYMExNT FUTURE    ESTATES.       (Ch.    11 

196.  GENERAL  POWERS— Under   a  general   power,   the 

donee  can  make  any  one   he   chooses  an  appointee. 

A  general  power  is  one  in  which  the  donee  is  given  a  right  to 
app)oint  the  estates  to  any  one  he  may  choose.  Such  power  is  equal 
to  the  ownership  of  the  fee,  because  the  donee  can  convey  a  fee 
simple.^ *^  It  should  be  noted,  however,  that  a  general  power  may 
be  held  in  trust;  that  is,  the  donee  may  have  the  power  of  convey- 
ing a  fee  simple,  but  the  conveyance  will  be  for  the  benefit  of 
other  persons.^^*  These  are  not  called  general  powers,  but  powers 
in  trust  Under  a  general  power,  any  person  may  be  an  appointee. 
For  instance,  the  donee  may  appoint  himself,  a  husband  may  ap- 
point his  wife,  and  so  on.^" 

197.  SPECIAL  POWERS— Under  a  special  power,  the  donee 

can    make    only    certain    designated    persons    ap- 
pointees.    Special  powers  are 

(a)  Exclusive  when  the  donee  must   select   one  out  of  a 

class,  and  appoint  to  him. 

(b)  Nonexclusive  when  the  donee  can  appoint  to  all  of 

the  class  of  persons  designated. 

A  special  or  particular  power  is  one  in  which  the  appointment 
can  be  made  to  only  certain  specified  persons  or  classes  of  per- 
sons."" Under  a  particular  power,  the  appointment  may  be  to  a 
trustee  for  the  benefit  of  the  appointee,  but  otherwise  the  donee 
Is  limited,  in  his  appointment  under  such  a  power,  to  the  persons 
or  class  designated.^'^     In   such  an  instrument   an   authority  to 

187  Wrl^rht  V.  Wright,  41  N.  J.  Eq.  382,  4  Atl.  855;  Com.  v.  Williams'  Ex'rs, 
13  Pa.  St  29;    Roach  v.  Wadham,  6  East  289. 

188  piowell  V.  Tyler,  91  N.  C.  207;    Blanchard  v.  Blanchard,  4  Hun,  287. 
180  2  Washb.  Real  Prop.  (5th  Ed.)  714;    New  v.  Potts,  55  Ga.  420.     But  see 

Shanlv  V.  Dewitt  44  Ohio  St  237,  6  N.  E.  25.5. 

190  Wright  V.  Wright  41  N.  J.  Eq.  382,  4  Atl.  855.  And  see,  as  to  powers 
under  the  New  Yorli  statute,  which  establishes  a  new  classification,  Jennings 
V.  Con  boy,  73  N.  Y.  230;    Coleman  v.  Beach,  97  N.  Y.  545. 

101  Hood  V.  Haden,  82  Va.  588;  Varrell  v.  Wendell,  20  N.  H.  431;  Stuyve- 
sant  V.  Neil,  07  How.  Prac.  (N.  Y.)  10;  In  re  Farucombe's  Trasts,  9  Ch. 
Div.  052. 


§    197)  SPECIAL    POWERS.  813 

appoint  to  the  children  of  the  donor  does  not  include  the  ji^rand- 
children,^"^  unless  some  special  circumstances  show  that  such  must 
have  been  the  intention;  as,  for  instance,  where  there  are  no  chil- 
dren living.^"*  A  power  to  appoint  "to  relations"  would  include 
only  those  relatives  who  could  take  under  the  statute  of  distribu- 
tions, but  the  word  "issue"  would  include  all  descendants  of  the 
donor. ^®* 

If  the  power  is  to  select  one  or  more  of  certain  designated  per- 
sons, and  to  appoint  the  whole  estate  to  him,  the  power  is  said  to 
be  exclusive.  But  if  part  of  the  estate  may  be  given  to  each  of 
the  persons  named,  or  the  power  is  only  to  determine  the  amount 
which  each  shall  receive,  the  power  is  nonexclusive.  For  example, 
a  power  to  appoint  "amongst  the  testator's  children"  would  be  a 
nonexclusive  power,  and  the  donee  would  only  have  a  discretion 
as  to  the  amount  which  each  should  receive.^'"  Under  a  nonex- 
clusive power,  where  a  number  of  persons  or  a  class  are  named 
as  donees,  if  no  appointment  is  made  the  court  will  give  the  estate 
to  all  the  donees,  in  equal  shares,  according  to  the  maxim  that 
equality  is  equity.^®'  Until  appointment,  the  uses  revert  to  the 
grantor,  unless  otherwise  provided,^^^  as  would  be  the  case  when 
the  estate  is  given  to  the  donee  for  life,  with  a  power  of  appoint- 
ing the  remainder.^®* 

182  Horwitz  V.  Norrls,  49  Pa.  St.  213;  Carson  v.  Carson,  Phil.  Eq.  (N.  C.) 
57;    Little  v.  Bennett,  5  Jones,  Eq.  (N.  C.)  166. 

188  Ingraham  v.  Meade,  3  Wall.  Jr.  32,  Fed.  Cas.  No.  7,045. 

18*  Dralie  v.  Dralie,  56  Hun.  590,  10  N.  Y.  Supp.  183;  Glenn  v.  Glenn,  21 
S.  C.  308;    Varrell  v.  Wendell,  20  N.  H.  431. 

188  Walsh  V.  Wallinser,  2  Russ.  &  M.  78;  Gainsford  v.  Dunn.  L.  R.  17  Eq. 
405.  See  for  applications,  Wilson  v.  Piggott,  2  Ves.  Jr.  351;  Rlcketts  v. 
Loftus,  4  Younge  &  C.  519;  Paske  v.  Haselfoot,  33  Beav.  125.  If  only  one 
child,  the  whole  could  be  appointed  to  that  child.  Bray  v.  Bree,  2  Clark 
&  F.  453.  As  to  Jllusoi-y  appointments,  see  BurreU  v.  Burrell,  Amb.  6G0; 
Butcher  v.  Butcher,  1  Ves.  &  B.  79. 

196  Withers  v.  Yeadon,  1  Rich.  Eq.  Cas.  (S.  C.)  824;  Harding  v.  Glyn, 
1  Atk.  469;  In  re  Phene's  Trusts,  L.  R.  5  Eq.  346;  Casterton  v.  Sutherland, 
9  Ves.  445;  Wilson  v.  Duguid,  24  Ch.  Div.  244.  See,  also,  Faulkner  v.  Wyn- 
ford,  15  Law  J.  Ch,  8. 

187  Ante,  p.  266.    See  Lambert  v.  Thwaites,  L.  R.  2  Eq.  151. 

18  8  Ward  V.  Amory,  1  Curt.  419,  Fed.  Cas.  No.  17,146;  Burleigh  v.  Clough^ 
62  N.  H.  267. 


814        ESTATES    AS    TO   TIME   OP   ENJOYMENT FUTURE    ESTATES.       (Ch.    11 


SAME— EXECUTION. 

198.  The  execution  of  a  power  is  subject  to  the  following 
conditions: 

(a)  It  must  be  by  the  donee  or  donees  named  (p.  314). 

(b)  It  must  be  in  the  form  provided  (p.  315). 

(c)  It  must  be  at  the  time  required  (p.  317). 

(d)  The  defective   execution  of  a  special  power  will   be 

aided  in  equity  (p.  318). 

(e)  The   execution  of  a  power  in  trust    may  be    com- 

pelled (p.  318). 

(f)  When  the  execution  of  a  power  is  excessive,  the  ex- 

cess will  be  void  (p.  318). 

Who  may  Execute  a  Power, 

In  general,  no  one  can  execute  a  power  as  donee  unless  he  has 
capacity  to  transfer  real  estate;  but  it  is  held  that  an  infant  may 
execute  a  naked  power  in  which  he  has  no  beneficial  interest;  that 
is,  one  which  is  to  be  exercised  for  the  benefit  of  another.^®*  Such 
powers  are  called  powers  simply  collateral.  And  a  married  woman 
may  execute  any  power  as  to  real  estate  without  the  consent  of 
her  husband;  and,  before  the  married  woman's  property  acts,  this 
was  the  usual  mode  of  conferring  upon  a  married  woman  a  right 
to  deal  with  her  separate  estate. '^°°  Under  a  will  creating  powers, 
if  no  donees  are  named,  the  executors  may  execute  the  power.*°^ 
If  two  or  more  donees  are  named  in  the  instrument  creating  the 
power,  all  must  join  in  the  execution,*"*  unless  otherwise  provided. 

199  Thompson  v.  Lyon,  20  Mo.  155.  But  cf.  In  re  Cardross'  Settlement, 
7  Ch.  Div.  728. 

200  Claflin  v.  Van  Wagoner,  32  Mo.  252;  Rush  v.  Lewis,  21  Pa.  St.  72; 
Ladd  V.  Ladd,  8  How.  10. 

201  Mandlebaum  v.  McDonell,  29  Mich.  78;  Silverthorne  y.  McKinster,  12 
Pa.  St.  07.  Cf.  Doyley  v.  Attorney  General,  4  Vin.  Abr.  485,  pL  16,  where 
a  power  was  executed  by  the  court 

202  Shelton  v.  Homer,  5  Mete.  (Mass.)  402;  Wilder  v.  Ranney,  95  N.  Y.  7; 
Hertell  v.  Van  Buren,  3  Edw.  Ch.  (N.  Y.)  20.  Where  executors  are  donees, 
less  than  all  may  execute  if  one  or  more  refuse  to  act.  Bonifaut  v,  Green- 
field, Cro.  Eliz.  80;    Zebach  v.  Smith,  3  Bin.  (Pa.)  69. 


§    198)  EXECUTION   OF    POWERS.  815 

But  such  powers  survive,  and,  after  the  death  of  one  of  the  donees, 
may  be  executed  by  the  survivor,'**"  unless  the  power  is  pjiven  to 
the  several  donees  by  name,  showing  that  personal  trust  and  con- 
fidence is  imposed  in  them,=*°*  and  even  in  these  cases  the  power 
may  he  exercised  by  the  survivors,  if  coupled  with  an  interest.'^"' 
If  a  power  is  given  to  executors  nominatim,  they  may  appoint 
under  the  power,  though  they  have  resigned  as  executors.^"' 
Where  no  personal  trust  or  confidence  is  imposed  on  the  donee 
of  a  power,  it  may  be  executed  by  attorney;^"  otherwise  the  donee 
must  use  his  own  discretion  in  making  the  appointment.^"'  The 
mere  execution  of  an  instrument  may  in  all  cases  be  by  attorney.^"" 
A  general  power  may  be  transferred,  and,  when  a  power  is  given 
to  a  person  and  his  assigns,  it  may  be  executed  by  his  assigns  in 
fact  or  in  law.'-*^" 

Form  of  JExecution. 

At  common  law  no  particular  form  of  execution  of  a  power  was 
required.  It  might  be  by  a  simple  writing.*"  This,  however,  is 
now  changed  by  statute  in  several  states,  and  the  execution  must 
be  by  deed  or  will,  according  to  the  provisions  of  the  instrument 
creating  the  power,  and  accompanied  by  the  same  formalities  as 
are  required  for  a  conveyance  of  realty."*     The  form  prescribed 

SOS  Philadelphia  Trust,  etc.,  Co.  v.  Llppincott,  106  Pa.  St  295;  Franklin 
V.  Osgood,  14  Johns.  (N.  Y.)  527;  Lee  v.  Vincent,  Oro.  Eliz.  26;  HoueU  v. 
Barnes,  Cro.  Car.  382;    Lane  v.  Debenham,  11  Hare,  188. 

204  Peter  v.  Beverley,  10  Pet  532,  563;  Franklin  v.  Osgood,  14  Johns.  (N.  Y.) 
527;    Tainter  v,  Clark,  13  Mete.  (Mass.)  220;   Anon.,  2  Dyer,  177a,  pi.  32. 

208  Franklin  v.  Osgood,  14  Johns.  (N.  Y.)  527;  Gutman  r.  Buckler,  69  Md. 
7,  13  Atl.  635;    Parrott  v.  Edmondson,  64  Ga,  332. 

206  Clark  v.  Tainter,  7  Gush.  (Mass.)  567;  Tainter  v.  Clark,  13  Mete 
(Mass.)  222. 

207  Howard  v.  Thornton,  50  Mo.  291;   Bales  v.  Perry,  51  Mo.  449. 

208  Graham  v.  King,  50  Mo.  22;    Hood  v.  Haden,  82  Va.  588. 

209  Singleton  v.  Scott  11  Iowa,  589;    Bales  v.  Perry,  51  Mo.  449. 

210  Pardee  v.  Llndley,  31  lU.  174;  Strother  v.  Law,  54  HI.  413;  Druid  Park 
Heights  Co.  of  Baltimore  City  y.  Oettinger,  53  Md.  46;  CoUins  v.  Hopkins,  7 
Iowa,   463. 

211  Ladd  v.  Ladd,  8  How.  10,  30;    Christy  v.  PuUiam,  17  111.  59. 

ai2  4  Shars.  &  B.  Lead.  Cas.  Real  Prop.  46;   1  Stim.  Am.  St.  Law,  §  1659. 


81(3        ESTATES    AS    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Cll.    11 

bj  thp  instrument  creatinj?  the  power  must  be  strictly  observed. '^"^ 
For  instance,  a  power  to  be  executed  by  deed  cannot  be  appointed 
by  will,  nor  one  to  be  executed  by  will  be  appointed  by  deed  during 
the  donee's  lifetime."*  The  execution  of  a  power  by  will  is  rev- 
ocable at  any  time  during  the  donee's  life.^^°  If  the  first  execu- 
tion of  a  power  is  void,  it  may  be  disregarded,  and  there  can  be 
another  execution. ^^* 

In  an  instrument  appointing  an  estate  under  a  power  an  inten- 
tion to  execute  the  power  must  appear,^^^  but  the  power  need  not 
be  reiited  or  referred  to.^^'  Many  questions  arise  in  considering^ 
wills,  whether  the  testator  has  exercised  powers  of  which  he  was 
the  donee,  or  has  merely  disposed  of  his  estates.  For  example,  a 
devise  of  "all  the  estate  which  the  testator  has  power  to  dispose 
of"  would  operate  as  an  exercise  of  powers  held  by  the  testator.^^' 
The  question,  however,  being  one  of  construction,  cannot  be  gone 
into  in  detail,  but  a  number  of  the  cases  will  be  found  in  the  notes.^^° 
A  power  will  be  held  to  be  executed  in  any  case  where  the  instni- 
ment  can  operate  in  no  other  way;  as  where  a  testator  has  a  power 

213  Hacker's  Appeal  (Pa,  Sup.)  15  Atl.  500.  Cf.  Morse  v.  Martin,  34  Beav. 
500. 

214  Moore  v.  Dimond,  5  R.  L  121;  Weir  v.  Smith,  62  Tex.  1;  Porter  v.. 
Thomas,  23  Ga.  467. 

216  1  Sujjd.  Powers,  46L 
218  1  SuKd.  Powers,  855. 

217  Blake  v.  Hawkins,  98  U.  S.  815;  Blapge  v.  Miles,  1  Story,  426,  Fed. 
Cas.  No.  1.479;    Hutton  v.  Bankard,  92  N.  Y.  295;    South  v.  South,  91  Ind.  221. 

218  Warner  v.  insurance  Co.,  109  U.  S.  357,  8  Sup.  Ct.  221;  White  v.  Hicks, 
83  N.  Y.  383;  Munson  v.  Berdan,  35  N.  J.  Eq.  376;  Roach  v.  Wadham,  6- 
East,  289. 

219  Lee  V.  Simpson,  134  U.  S.  572,  10  Sup.  Ct  631;  Cowx  v.  Foster,  1  Johns. 
&  H.  3U;  Ferrier  v.  Jay,  L.  R.  10  Eq.  550;  Bruce  v.  Bruce,  L.  R.  11  Eq.  371. 
See,  also.  Walker  v.  Mackie,  4  Russ.  76;  Blagge  v.  Miles,  1  Stoi-y,  426,  Fed. 
Cas.  No.  1,479. 

220  Funk  V.  Eggleston,  92  111.  515;  Amory  v.  Meredith,  7  Allen  (Mass.)  397; 
Williard  v.  Ware,  10  Allen  (Mass.)  263;  Bangs  v.  Smith,  98  Mass.  270;  Cum- 
Bton  V.  Bartlett,  149  Mass.  243,  21  N.  E.  373;  Bingham's  Appeal,  64  Pa.  St 
845;  Burleigh  v,  Clough,  52  N.  H.  267;  Maryland  Mut  Ben.  Soc.  v.  Clen- 
dinen,  44  Md.  429;  HoUister  v.  Shaw,  46  Conn.  248;  Bilderback  v.  Boyce, 
14  S.  C.  528;  Andrews  v.  Emmot,  2  Brown,  Ch.  297;  Lewis  v.  Lewellyn, 
Turn.  &  R.  104;   Grant  v.  Lyuam,  4  Russ.  292;   Deun  v.  Roake,  6  Bing.  475; 


C    198)  EXECUTION    OF   POWERS.  317 

over  certain  land,  but  no  estate  therein,  a  devise  of  the  land  will 
be  treated  as  an  appointment  under  the  power."^  Where  another 
estate  is  limited  until  the  power  is  executed,  an  appointment  will 
put  an  end  to  such  prior  estate  "" 

Time  of  Execution. 

When,  from  the  object  for  which  a  power  is  created,  or  from 
express  direction  in  the  instrument  creating  the  power,  it  must 
be  exercised  within  a  certain  time,  any  execution  after  that  time 
will  be  void."''  While  this  is  the  rule,  there  are  broad  exceptions. 
The  courts  look  for  the  main  purpose  of  the  donor,  and  wb«^n  they 
conclude  that  the  sale  or  other  appointment  directed  by  him  was 
his  main  purpose,  and  that  the  time  was  inserted  only  as  a  matter 
of  choica  or  preference,  they  have  sustained  an  execution  of  the 
power  at  some  other  time  than  the  one  directed."*  When  no 
time  is  prescribed  for  the  execution  of  the  power,  it  may  be  exe- 
cuted at  any  time  which  falls  within  the  general  purpose."'  Thus 
an  execution  at  any  time  during  the  donee's  life  has  been  held 
go^^d  "• 

Pomfret  v.  Ferring,  5  De  Gex,  M.  &  G.  775;  Thornton  v.  Thornton.  L.  R. 
20  Eq.  599;  Ames  v.  Cadogan,  12  Ch.  Div.  868;  Nannock  v.  Horton,  7  Ves.  392: 
Napier  v.  Napier,  1  Sim.  28;  Webb  v.  Honnor,  1  Jac.  &  W.  352;  In  re  Goods 
of  Merritt,  Swab.  &  T.  112;    In  re  Teape's  Trusts,  L.  R.  16  Eq.  442. 

22  1  Sir  Edward  Clere's  Case,  6  Coke,  17b;  Standen  v.  Stauden,  2  Ves.  Jr. 
589;    Maundrell  v.  Maundrell,  10  Ves.  246. 

223  HoUman  v.  Tigges,  42  N.  J.  Eq.  127,  7  Atl.  347;  Shearman's  Adm'r  v. 
Hicks,  14  Grat  (Va.)  96;  Doe  v.  Jones,  10  Bam.  &  C.  459;  Jones  v.  Winwood, 
S  Mees.  &  W.  653.  For  cases  of  lapse,  see  In  re  Harries'  Trust,  1  Johns. 
Eng.  Ch.  199;  Chamberlain  v.  Hutchinson,  22  Beav.  44i;  In  re  Davies' 
Trusts.  L.  R.  13  Eq.  163;   Eales  v.  Drake,  1  Ch.  Div.  217. 

225  Wilkinson  v.  Buist,  124  Pa.  St.  253,  16  Atl.  856;  Fidler  v.  Lash,  125 
Pa.  St  87,  17  Atl.  240;  Harvey  v.  Brisbin,  50  Hun,  376,  3  N.  Y.  Supp.  676; 
Harmon  v.  Smith,  38  Fed.  482.  So  the  power  must  not  be  exercised  before 
the  time  directed.  Booraem  v.  Wells,  19  N.  J.  Eq.  87;  Henry  v.  Simpson,  19 
Grant  (N.  C.)  522;    Jackson  v.  Ligon,  3  Leigh  (Va.)  16L 

224  Snell's  Ex'rs  v.  Snell,  38  N.  J.  Eq.  119;  Shaker's  Appeal,  43  Pa.  St.  83; 
Hale  V.  Hale,  137  Mass.  168;    Hallum  v.  SiUiman,  78  Tex.  347,  14  S.  W.  797. 

226  Moores  v.  Moores,  41  N.  J.  Law,  440;  Cotton  v.  Burkelman,  142  N.  Y. 
160,  36  N.  E.  890. 

226  1  Sugd.  Powers,  330;  Richardson  v.  Sharpe,  29  Barb.  (N.  Y.)  222; 
Bakewell  v.  Ogden,  2  Bush  (Ky.)  265. 


318        ESTATES    AS    TO    TIME    OF   ENJOYMENT FUTURE   ESTATES.       (Ch.    11 

Defective  Execution. 

When  a  general  power  is  defectively  executed,  equity  will  not 
aid  the  appointee,  unless  a  valuable  consideration  has  been  paid,^" 
but,  where  there  are  defects  in  the  execution  of  a  special  power,  the 
aid  of  a  court  of  equity  will  be  given,"*  if  there  has  been  a  sub- 
stantial compliance,  and  such  defects  as  the  omission  of  the  requi- 
site number  of  witnesses  will  be  supplied;  "» and  so,  where  the 
execution  has  been  by  will  instead  of  by  deed,  it  will  be  held 
good.2»» 

Compelling  Execution. 

The  execution  of  a  power  can  be  compelled  only  where  the  power 
is  mandatory,  or  is  a  power  in  trust;2"that  is,  a  power  held  in 
trust,  without  any  discretion  as  to  its  exercise,  and  in  which  the 
donee  has  no  beneficial  interest,  will  be  enforced  in  equity  in  con- 
formity with  the  trust,  although  not  executed  by  the  donee  of 
the  power.  Thus  where  there  is  a  power  given  to  trustees  to  sell 
property  and  apply  the  proceeds  upon  trusts,  and  the  trustees  die 
without  executing  the  power,  the  court  will  order  a  sale,  and  com- 
pel the  heirs  to  join  in  the  conveyance."'  A  court  of  equity  will 
not  execute  or  control  a  discretionary  power."' 

Excessi/ve  Execution. 

The  execution  of  a  power  may  be  excessive  as  to  the  object,  as 
when,  under  a  special  power,  estates  are  given  to  some  who  cannot 

227  Schenck  V.  EUlngwood,  3  Edw.  Ch.  (N.  Y.)  175;  Bradlsh  r.  Gibbs,  8 
Johns.  Ch.  (N.  Y.)  523;  Beatty  v.  Clark,  20  Cal.  11;  Morgan  v.  Mllman,  3 
De  Gex,  M.  &  G.  24.  See,  however,  Blove  v.  Sutton,  3  Mer.  237;  Sayer'v. 
Sayer,  7  Hare,  377,  affirmed  Innes  v.  Sayer,  3  Macn.  &  G.  606;  Pepper's 
Will,  1  Pars.  Eq.  Cas.  436. 

228  BaiT  V.  Hatch,  3  Ohio,  527;  Mutual  Life  Ins.  Co.  v.  Everett,  40  N.  J. 
Eq.  345,  3  Atl.  126;  Clifford  v.  Clifford,  2  Vem.  379;  Fothergil  v.  Fothergil,  1 
Eq.  Cas.  Abr.  222,  pi.  9;  Jackson  v.  Jackson,  4  Brown,  Ch.  462;  Moodle'v. 
Reld,  1  Madd.  516.    See,  also,  Johnson  v.  Touchet,  37  Law  J.  Ch.  25. 

229  Wilkes  V.  Holmes,  9  Mod.  485;  Sergeson  v.  Sealey,  2  Atk.  412.  Or  want 
of  a  seal.  Smith  v.  Ashton,  Ch.  Cas.  263.  See,  also,  Piggot  v.  Penrice.  Prec 
Ch.  471. 

230  Toilet  v.  Toilet,  2  P.  Wms.  489;    Sneed  v.  Sneed,  Amb.  64. 

281  Smith  V.  Kearney,  2  Barb.  Cb.  (N.  Y.)  533;   Doe  v.  Ladd,  77  Ala,  223. 

282  Sugd.  Powers,  588. 

»88  Sugd.  Powers,  258,  659. 


198)  EXECUTION    OP   POWERS. 


319 


be  donees ;2"  or  it  may  be  excessive  as  to  amount  of  subject-matter, 
when  more  is  given  than  the  donee  had  power  to  appoint."'' 

A  power  to  sell  does  not  authorize  the  donee  to  mortgage,  in 
the  absence  of  expressions  showing  such  intention."**  And  a 
power  to  mortgage  does  not  authorize  a  sale,"^  but  the  mortgage 
may  be  in  the  usual  form,  and  might  be  by  a  trust  deed  or  a  mort- 
gage with  a  power  of  sale,  if  that  was  the  usual  mode  of  effect- 
ing a  mortgage."*  A  power  to  appoint  a  fee  includes  power  to 
create  lesser  estates,  because  such  a  power  is  equal  to  ownership 
in  fee,  and  the  owner  of  a  fee  simple  may  create  any  estate  he 
chooses.""  When  the  excess  can  be  separated,  the  execution  as 
to  the  remainder  will  be  valid.  For  instance,  in  case  of  excessive 
execution  as  to  the  objects  of  the  power,  the  estates  appointed  to 
those  who  could  not  take  as  donees  would  be  void,  and  the  others 
good.""  So  a  lease  for  40  years  under  a  power  to  lease  for  21 
would  be  good  as  a  lease  for  21  years,  the  excess  only  being  void.^" 
If  conditions  are  improperly  annexed  to  the  appointment,  the  con- 
ditions will  be  treated  as  void,  and  the  appointment  freed  from 
them."" 

«84  Alexander  v.  Alexander,  2  Ves.  Sr.  640;    Sadler  r.  Pratt,  5  Sim.  632. 

23  5  Commissioners  of  Knox  Co.  v.  Nichols,  14  Ohio  St  260.  See  for  execu- 
tions held  good,  Whitlock's  Case,  8  Coke,  69b;  TroUope  v.  Linton,  1  Sim.  & 
S.  477;    Talbot  v.  Tipper,  Skin.  427;    Thwayles  v.  Dye,  2  Vem.  80. 

288  Green  v.  Claiborne,  83  Va.  386,  5  S.  E.  376;  Norris  v.  Woods,  89  Va.  873, 
17  S,  B.  552;  Smith  v.  Morse,  2  Cal.  534.  But  see  Lancaster  v.  Dolan,  1 
Rawle  (Pa.)  231;  Zane  v.  Kennedy,  73  Pa.  St  182. 

28  7  1  Sugd.  Powers,  514. 

28  8  Wilson  V.  Troup,  7  Johns.  Ch.  (N,  Y.)  25;  Jesup  v.  Bank,  14  Wis.  331; 
Bolles  V.  Munnerlyn,  83  Ga,  727,  10  S.  E.  365.  A  power  to  mortgage  will  au- 
thorize a  renewal  of  a  previous  mortgage.  Warner  v.  Insurance  Co.,  109  U. 
S.  857,  8  Sup.  Ct.  221. 

289  WiUiams  v.  Woodard,  2  Wend.  (N.  Y.)  487;  Hedges  v.  Riker,  5  Johns. 
Ch.  (N.  Y.)  163.  But  see  Seymour  v.  Bull,  8  Day  (Conn.)  388;  Hubbard  v. 
Elmer,  7  Wend.  (N.  Y.)  446. 

240  2  Sugd,  Powers,  66.  Proper  appointees  will  take  the  whole.  Alexander 
V.  Alexander.  2  Ves.  Sr.  640;  Sadler  v.  Pratt  6  Sim.  632;  In  re  Kerr's  Trusts, 
4  Ch.  Div.  600. 

241  Sinclair  v.  Jackson,  8  Cow.  (N.  Y.)  543;  Powcey  v.  Bowen,  1  Ch.  Cas.  23; 
Campbell  v.  Leach,  Amb.  740. 

24  2  2  Sugd.  Powers  (Ed.  1856)  84;  Blomfield  T.  Eyre,  5  a  B.  713.  See,  how- 
ever, In  re  Brown's  Trust,  L.  R.  1  Eq.  74. 


320        ESTATES    A3    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.   11 


SAME— RIGHTS  OF  CREDITORS. 

199.  Creditors  of  the  donee  of  a  power  have  no  rights  in 

the  power,  except: 
EXCEPTION — When    the    power   is    general,   creditors 
may  enforce  their  claims  against  a  voluntary  ap- 
pointee. 

200.  Creditors  of  the  appointee  may  enforce  their  claims 

against   his   estate  after  appointment   to   him,   but 
cannot  compel  the  execution  of  the  pow^er,  except: 
EXCEPTION — In  some  states,  by  statute,  creditors  may 
compel  the  execution  of  a  benefllcial  pow^er. 

The  donee  of  a  power  has  no  estate  in  the  lands  subject  thereto, 
and  his  interest  can  be  reached  by  his  creditors  only  in  equity.^*" 
Under  a  special  power  in  which  the  donee  has  no  beneficial  interest, 
his  creditors  have  no  ri^hts.^**  Most  cases  hold  that  creditors  of 
the  donee  may  levy  on  lands  in  the  hands  of  a  voluntary  appointee 
under  a  general  power,^*'' though  the  correctness  of  the  rulinga 
has  been  doubted.^*®  Creditors  of  the  appointee  under  a  power 
may  levy  on  the  lands  after  the  power  is  executed,  but  they  can- 
not compel  an  execution,  even  in  cases  of  special  powers.^*^  But 
in  several  states,  including  New  York,  Michigan,  Wisconsin,  and 
Minnesota,  it  is  provided  by  statute  that  the  execution  of  a  bene- 
ficial power — that  is,  a  special  power  under  which  the  debtor  could 
compel  an  appointment  in  his  favor — may  be  compelled  by  the 
creditors  of  the  one  entitled  to  the  appointment.''*' 

«48  Holmes  v.  Cogrhlll,  12  Ves.  206. 

2*4  Johnson  v.  Gushing,  15  N.  H.  298. 

2*6  Clapp  V.  In;^raham,  12G  Mass.  200;  Knowles  v.  Dodge,  1  Mackey  (D.  O.) 
G6;  Wales'  Adm'r  v.  Bowdish's  Ex'r,  61  Vt.  23,  17  Atl.  lUOO;  Lassells  T.  Com- 
wallis,  2  Vera.  465;    Holmes  v.  Coghill,  12  Ves.  206. 

2*«  Com.  V.  Duffield,  12  Pa,  St.  277;  Thorpe  v.  Goodall,  17  Ves.  888. 

«4T  2  Sugd.  Powers,  102. 

2*«  Schars.  &  B.  Lead.  Cas.  Real  Prop.  28;  1  Stim.  Am.  St  Law,  §  1657. 


J   201)  DESTRUCTION    OF    F0WEB8.  821 


SAME— DESTRUCTION. 

201.  Powers  may  be  destroyed 

(a)  By  execution. 

(b)  By  death  of  one  whose  consent  to   the  execution  Is 

required. 

(c)  By  alienation  of  the    estate  to  which   the   power  is 

appendant. 

(d)  By  release,  unless  the  power  is  simply  collateral. 

(e)  By  cesser. 

A  power  is  like  a  conveyance  of  land,  and  cannot  be  revoked  by 
the  donor  after  it  has  been  created,  nor  will  his  death  put  an  end 
to  the  right  to  exercise  it."*  A  power  is,  of  course,  extinguished 
by  its  execution,  and  any  furi;her  power  reserved  in  the  instru- 
ment of  execution  would  not  be  the  same,  but  a  new  power.^'*'' 
The  death  of  one  whose  consent  to  the  execution  of  the  power  is 
required  destroys  the  power.-"  Where  a  power  is  appendant,  the 
alienation  of  the  estate  to  which  the  power  is  annexed  destroys 
the  power,  in  whole  or  in  part,  because  the  donee  will  not  be  per- 
mitted to  execute  the  power  in  derogation  of  his  conveyance  of 
the  estate."*  So  a  partial  alienation  of  the  estate  might  suspend 
or  qualify  the  power;  as,  where  the  donee  has  made  a  lease,  an 
estate  created  by  a  subsequent  execution  of  the  power  would  be 
postponed  until  the  termination  of  the  lease."*     A  power  in  gross, 

24  9  Wilbum  V.  Spofford,  4  Sneed  (Teim.)  698;  Armstrong  v.  Moore,  59  Tex. 
646. 

360  Hele  V.  Bond,  Prec.  Ch.  474;    Hatcher  v.  Curtis,  Freem.  Ch.  61. 

2  51  Kissam  v.  Dierkes,  49  N.  Y.  602;  Powles  v.  Jordan,  62  Md.  499.  But 
see  Leeds  v.  Wakefield,  10  Gray  (Mass.)  514;  Sohier  v.  Williams,  1  Curt.  479, 
Fed.  Cas.  No.  13,159. 

252  Wilson  V.  Troup,  2  Cow.  (N.  Y.)  195;  Farkes  v.  White,  11  Ves.  209; 
Bringloe  v.  Gk»odson,  4  Bing.  N.  O.  726.  So  a  recovery  extiuguishcs.  Smith 
V.  Death,  5  Madd.  371;  Savile  v.  Blacket,  1  P.  Wms.  777;  or  a  fine,  Bickloy 
V.  Guest,  1  Russ.  &  M.  440;  Walmsley  v.  Jowett,  23  Eng.  Law  &  Eq.  353. 
And  see  Hole  v.  Escott,  2  Keen,  444. 

2B3  Noel  V.  Henley,  McCleL  &  Y.  302. 

REAIi  PROP. — 21 


322        ESTATES    AS    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 

howeyer,  is  not  affected  by  an  alienation  of  the  donee's  estate.^"* 
And  a  power  simply  collateral  cannot  be  destroyed  by  the  donee.^" 
All  other  powers  may  be  released  to  one  having  a  freehold  in  pos- 
session, reversion,  or  remainder,  and  so  destroyed.""*  The  doc-  • 
trine  of  merger,  however,  does  not  apply  to  powers,  because  the 
donee  may  have  both  an  estate  and  a  power.*"  When  the  object 
for  which  a  special  power  is  created  has  failed,  the  power  is  said 
to  be  destroyed  by  cesser."* 

RULE  AGAINST  PERPETUITIES. 

202.  "No  interest  subject  to  a  condition  precedent  is  good, 
unless  the  condition  must  be  fulfilled,  if  at  all, 
within  21  years  after  some  life  in  being  at  the  cre- 
ation of  the  interest."^* 

It  has  already  been  stated  that  at  common  law  freeholds  could 
nut  be  created  to  commence  in  futuro,  and  the  exceptions  to  this 
rule  which  have  grown  up  have  been  discussed;*®"  but  some  forms 
of  such  limitations  are  invalid  if  made  to  commence  at  a  too  remote 
period.  This  is  called  the  rule  against  perpetuities,  but  unfortunately 
so,  for  a  better  designation  would  be  the  rule  "against  remoteness." 
The  misnomer  has  in  all  probability  given  rise  to  much  of  the 
confusion  which  exists  in  relation  to  the  rule.     What  is  known  as 

2  6*  1  Sugd.  Powers,  85;  Maundrell  v.  Maundrell,  10  Ves.  246b.  But  see 
Doe  V.  Britain,  2  Bam.  &  Aid.  98. 

2 68  A  power  simply  collateral  is  "a  power  to  a  person  not  having  any  In- 
terest in  the  land,  and  to  whom  no  estate  is  given,  to  dispose  of,  or  charge 
the  estate  in  favor  of  some  other  person."  1  Sudg.  Powers,  45.  See  West  v. 
Berney,  1  liuss.  &  M.  431. 

256  D'Wolf  V.  Gardiner,  9  R.  I.  145;  Grosvenor  v.  Bowen,  15  R.  I.  549,  10 
Atl.  58'J;  Albany's  Case,  1  Col^e,  110b. 

2  57  Benesch  v.  Clark,  49  Md.  497;   Henderson  v.  Vaulx,  10  Yerk.  (Tenn.)  30. 

2  08  Hetzel  v.  Barber,  69  N.  Y.  1;  Shai-psteen  v.  Tillou,  3  Cow.  (N.  Y.)  651; 
Smith's  Lessee  v.  Folwell,  1  Bin.  (Pa.)  546;  Bates  v.  Bates,  134  Mass.  110. 
But  see  Ely  v.  Dix,  118  111.  477,  9  N.  E.  62  (a  partial  failure). 

250  Gray,  Perp.  144;  Paxson,  J.,  In  Smith's  Appeal,  88  Pa.  St.  493.  For  the 
origin  and  history  of  the  rule  against  perpetuities,  see  Gray,  Perp.  c.  5. 

280  See  ante,  pp.  133,  284. 


I    202)  RULE    AGAINST    PERPETUITIES,  323 

the  rule  against  perpetuities  has  nothing  to  do  with  restraints  on 
alienation,  as  might  be  supposed,  though  many  statutes  and  cases 
have  so  treated  it.  It  is  based  entirely  on  public  policy,  and  its 
only  object  is  to  prevent  the  creation  of  estates  which  are  to  vest 
in  interest  at  a  remote  time.  That  this  is  true  will  be  seen  from  the 
fact  that  interests  may  be  too  remote,  though  they  are  capable  of  a 
present,  alienation."*^ 

The  rule  against  perpetuities  applies  only  to  estates  which  are 
limited  to  vest  on  the  happening  of  a  contingency.       This  con- 
tingency must  happen,  if  at  all,  within  the  prescribed  period,  or 
the  estate  so  limited  is  void.^''^'     The  fact  that  it  may  and  does 
happen  within  such  time  is  not  sufficient  to  make  the  limitation 
valid,  if  it  might  have  happened  beyond  the  prescribed  time.^'* 
An  estate  may  be  limited,  according  to  this  rule,  after  any  number 
of  lives  in  beiug.^"*     The  only  restriction  suggested  is  that  the 
number  must  not  be  so  great  that  evidence  of  the  termination  of 
the  lives  cannot  be  obtained.^®^     In  the  usual  form  in  which  the 
nile  is  stated,  the  period  of  gestation  is  added  to  21  years,  but  this 
is  not  strictly  accurate.     The  same  effect  is  reached  by  holding 
that  a  child  in  ventre  sa  mere  is  in  being,  so  as  that  an  estate- 
can  vest  in  it.=^««     In  this  way  it  is  possible  that  three  periods  of" 
gestation  may  occur  in  a  limitation  which  does  no«t  violate  the- 
rule.^®^     The  term  of  21  years  after  the  dropping  of  a  life  whicb 
is  allowed  by  the  rule  may  be  in  gross  without  reference  to  the 

261  Gray,  Perp.  §  140. 

282  Jee  V.  Audley,  1  Cox,  Ch.  324;  Abbiss  v.  Burney,  17  Ch.  Dlv.  211;  In  re 
Frost,  43  Ch.  Div.  246;  In  re  Hargreaves,  Id.  401;  Porter  v.  Fox,  6  Sim.  485; 
Doe  V.  Chains,  18  Q.  B.  224,  231.  See  Sawyer  v.  Cubby,  146  N.  Y.  192.  40  N, 
E.  869;  Lloyd  v.  Carew,  Show.  Pari.  Cas.  137.  For  a  longer  period  made 
possible  under  statutes  affecting  esta/tes  tail,  see  1  Dembltz,  Land  Tit  118. 

268  Stephens  v.  Evans'  Adm'x,  30  Ind.  39;  Jee  v.  Audley,  1  Cox,  Ch.  324; 
Lett  V.  Randall,  3  Smale  &  G.  83.     Contra,  Longhead  v.  Phelps,  2  W.  Bl.  704. 

264  Or  after  the  lives  of  unborn  persons,  if  the  vesting  is  during  the  lives  of 
persons  in  being.     Evans  v.  Wallver,  3  Ch.  Div.  211. 

266  Thellusson  v.  Woodford,  11  Ves.  112;  Low  v.  Burron,  3  P.  Wms.  262. 
See  Scatterwood  v.  Edge,  1  Salk.  229. 

266  Gray,  Perp.  §  220;  Storrs  v,  Benbow,  3  De  Gex,  M.  &  G.  390;  Long  v. 
Blaekall,  7  Term  R.  100. 

287  "Suppose,  for  instance,  a  devise  to  testator's  children  for  life,  on  their 
fleath  to  be  accumulated  till  the  youngest  grandchild  reaches  twenty-one. 


324        ESTATES    A3   TO    TIME   OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 

minority  of  any  person."'*  Therefore  a  limitation  of  an  estate 
after  a  term  of  21  years  is  good."®  In  cases  of  contingent  remain- 
ders, however,  tlie  time  within  which  they  must  vest  is  limited  to 
the  duration  of  lives  in  being,  and  the  period  of  21  years  additional 
is  not  allowed.""  The  time  within  which  an  estate  limited  must 
vest  under  the  nile  is  computed  from  the  death  of  the  testator, 
when  the  limitation  is  by  will,"^  and,  v.hen  by  deed,  from  the 
execution  of  the  deed."^  The  rule  is  satisfied  if  the  estate  vests 
within  this  time,  though  the  interest  so  created  does  not  terminate 
until  a  later  time.'^' 

The  rule  against  perpetuities  is  not  one  of  construction,  but  it 
is  applied  to  a  devise  or  a  deed  after  the  instrument  limiting  the 
estates  is  construed,  and  is  applied  regardless  of  the  intention ;  for 
the  rule  is  not  intended  to  effect  the  intention,  but  more  often  de- 
feats it."*  It  is  only  in  cases  of  ambiguous  construction  that  it  is 
presumed  that  the  intention  was  to  limit  an  estate  which  would  not 
be  void  as  contravening  the  rule.*^' 

and  then  to  be  divided  among  all  the  grandchildren  then  living,  and  the  Issue 
then  living  of  any  deceased  grandchild.  The  testator  leaves  a  posthumous 
child,  who  dies,  leaving  one  child,  A.,  born,  and  another,  B.,  en  ventre  sa 
mere.  B.  Is  born,  and  reaches  twenty-one,  but  before  he  does  so  A.  dies, 
leaving  his  wife  enceinte,  who  gives  biith  to  a  child  after  B.  reaches  twenty- 
one.  Here  we  have  (1)  the  period  until  the  testator's  child  Is  born;  (2)  the 
life  of  such  child;  (3)  the  period  after  the  death  of  such  child  until  B.  is 
born;  (4)  the  minority  of  B.;  (5)  the  period  from  the  time  when  B.  reaches 
twenty-one  until  A.'s  child  Is  born.  Here  we  have  a  life,  a  minority  of  twen- 
ty-one years,  and  three  periods  of  gestation."  Gray,  Peip.  §  222.  A".d  com- 
pare Long  V.  Blackall,  7  Term  R.  100;  Thellusson  v.  Woodford,  11  Ves.  112. 
28  8  Beard  v.  Westcott,  5  Taunt.  393;  Cadell  v.  Palmer,  1  Clark  &  F.  372. 
But  see  Mayor,  etc.,  of  New  York  v.  Stuyvesant's  Heirs,  17  N.  Y.  34. 

269  Gray,  Perp.  §  225;  Low  v.  Bun-on,  3  P.  Wms.  2G2.  See  Stephens  v. 
Stephens,  Cas.  t.  Talb.  228;    Avern  v.  Lloyd,  L.  R.  5  Eq.  383. 

270  Gray,  Perp.  §  294;    Cattlin  v.  Brown,  11  Hare,  372. 

271  Southern  v.  WoUaston,  16  Beav.  27G. 

«7  2  McArthur  v.  Scott,  113  U.  S.  340,  5  Sup.  Ct.  652. 

27  8  Otis  V.  McLellan,  13  Allen  (Mass.)  330;  Mlnot  v.  Taylor,  129  Mass.  160; 
Heald  v.  Heald,  56  Md.  300.    But  see  Slade  v.  Patten,  68  Me.  380. 

27  4  Gray,  Perp.  §  629;  Maule,  J.,  In  Dungannon  v.  Smith,  12  Clark  &  F. 
546;    James,  L.  J.,  in  Heasman  v.  Pearse,  7  Ch.  App.  275. 

«Te  Post  V.  Hover,  33  N.  Y.  593;    Du  Bois  v.  Ray,  35  N.  Y.  162. 


§    203)  RULE    AGAINST    PERPETUITIK8.  325 

Effect  of  Limitations  too  Remote. 

Wlien  the  limitation  of  a  future  estate  is  void  on  account  of  the 
rule  against  perpetuities,  the  prior  estates  take  effect,  as  if  there 
had  been  no  subsequent  limitations.*^'  But  estates  which  are  to 
take  effect  after  limitations  that  are  too  remote,  if  vested,  or  if 
they  become  vested  within  the  time  prescribed  by  the  rule,  will 
not  be  affected  by  the  void  limitations.*^^  In  cases  where  a  good 
limitation  of  an  estate  is  made,  and  a  subsequent  modification  is 
added  which  would  make  the  estate  void  for  remoteness,  the  modifi- 
cation will  be  rejected,  and  the  estate  will  stand  as  under  the 
original  limitation.*^*  When  there  is  no  disposition  in  a  will, 
except  the  void  limitation,  the  heirs  taka*'" 


SAME— ESTATES  SUBJECT  TO  THE  RULE. 

203.  The  rule  against  perpetuities  applies  to  all  estates 
and  interests  in  land,  legal  or  equitable,  but  does 
not  include 

(a)  Vested  interests. 

(b)  Present  interests. 

(c)  PoTvers  -which  cannot  be  exercised  beyond  the  time 

allo-wed  by  the  rule. 
EXCEPTIONS — The  following   cases  are  recognized  ex- 
ceptions to  the  rule: 

(a)  Rights  of  entry  for  condition  broken. 

(b)  Gifts   to   a   charity,  -with   a  remote   gift  over  to  an- 

other charity. 

«T6  Proprietors  of  Church  In  Brattle  Square  v.  Grant,  3  Gray  (Mass.)  14L'. 

277  Gray,  Perp.  §  251.  But  see  Proctor  v.  Bishop  of  Bath  «&  Wells,  2  H. 
Bl.  358.  So  some  of  the  limitations  may  vest  in  time,  and  be  valid  th  )ug'i 
others  fall.  "Wilkinson  v.  Duncan,  30  Beav.  Ill;  Cattlin  v.  Brown,  11  Hare. 
872;  Picken  v.  Matthews,  10  Ch.  Div.  264;  Hills  v.  Simonds,  125  :si;.ss.  53  >. 
But  see  Pearks  v.  Moseley,  5  App.  Gas.  714. 

27  8  siade  v.  Patten,  68  Me.  380;  Ring  v.  Hardwick,  2  Beav.  352;  Gove  v. 
Gove,  2  P.  Wms.  28.  Otherwise  when  the  first  limitation  is  not  absolute. 
Whitehead  v.  Rennett,  22  Law  J.  Ch.  1020. 

27  9  Fosdick  V.  Fosdick,  6  Allen  (Mass.)  41;    Wainman  v.  Field,  Kay.  507. 


326         ESTATES    AS    TO    TIME    OF   ENJOYMENT FUTURE    ESTATES.       (Ch.   11 

The  rule  against  perpetuities  does  not  apply  to  vested  interests, 
but  only  to  those  which  are  contingent.^*"  Covenants  running  with 
the  land  are  present  interests,  and  therefore  do  not  violate  the 
rule.-®^  If  property  is  vested  absolutely  in  a  person,  and  a  con- 
dition is  added  postponing  his  enjoyment,  such  condition  will  be 
void  for  repugnancy  if  for  a  longer  period  than  the  minority  of  the 
person  entitled  to  the  property.  Such  cases  have  nothing  to  do  with 
the  rule  against  perpetuities.'^®"  We  have  already  seen  that  reversions 
and  vested  remainders  are  vested  interests,  and  therefore  they  are  not 
within  the  rule  against  perpetuities.''*'  There  is  considerable  con- 
flict as  to  whether  contingent  remainders  are  within  the  rule.  It 
is  argued  that  they  are  not  within  the  rule,  because  they  may  be 
destroyed  by  the  tenant  of  the  preceding  estate.  But  the  better 
opinion  is  that  they  are  subject  to  the  rule.  This  is  the  case  under 
statutes  which  prevent  the  destruction  of  such  remainders  by  acts 
of  the  tenant  of  the  particular  estate.^**  Remainders  after  estates 
tail  are  not  too  remote,  because  they  may  be  barred  by  the  tenant 
in  tail  at  any  time.'^*" 

A  great  many  cases  have  arisen  where  there  were  limitations 
over  "on  failure  of  issue."  At  common  law  the  words  are  held  to 
mean  an  indefinite  failure  of  issue,  and  not  a  failure  at  the  death 
of  the  person  named. '^^^  The  tendency  of  the  later  cases  is  away 
from  this  rule,**^  and  in  some  states  it  has  been  changed  by  stat- 

2  80  Gray,  Perp.  §  205. 

S81  Tobey  v.  Moore,  130  Mass.  448;    Ex  parte  Ralph,  1  De  Gex,  219. 

282  Daniels  v.  Eldredge,  125  Mass.  356;  Josselyn  v.  Josselyn,  9  Sim.  63; 
Saunders  v.  Vautier,  4  Beav.  115.  In  re  Ridley,  11  Ch.  Div.  045.  But  see 
Herbert  v.  Webster,  15  Ch.  Div.  610.    See  Lealie  v.  Robinson.  2  Mer.  303. 

2  83  Gray,  Perp.  §  205. 

2  84  Gray,  Perp.  §§  281-280,  and  see  ante,  p.  2M. 

285  Goodwin  v.  Clarli,  1  Lev.  35;  Xlcolls  v.  Sheffield,  2  Brown,  Ch.  215. 
See  Duke  of  Norfolk's  Case,  3  Ch.  Cas.  1.  And  cf.  Bristow  v.  Boothby,  2 
Sim.  &  S.  465. 

2  86  Chadock  v.  Cowley,  Cro.  Jac.  095;  Burrough  v.  Foster,  6  R.  I.  534; 
Ct  Ashley  v.  Ashley,  6  Sim.  358.  But  otherwise  as  to  leaseholds,  Forth 
V.  Chapman,  1  P.  Wms.  603;  or  legacies,  Nichols  v.  Hooper,  Id.  rj8.  And 
see  Hughes  v.  Sayer,  Id.  534. 

287  Anderson  v.  Jackson,  10  Johns.  (N.  Y.)  882;  Benson  v.  Corbin,  145  N.  Y. 
851,  40  N.  E.  11;   Abbott  v.  Essex  Co.,  18  How.  202;    Greenwood  v.  Verdon, 


§    203)  RULE    AGAINST   PBRPETmTIES.  327 

ute."«  When  the  failure  Is  of  the  issue  of  some  other  person  than 
the  holder  of  the  estate,  the  limitation  over  is  an  executory  devise, 
and  so  void  in  cases  of  indefinite  failure.^^*'  But,  if  the  remain- 
der is  given  to  another  on  the  failure  of  issue  of  the  first  taker, 
a  limitation  after  an  indefinite  failure  is  construed  to  give  him  an 
estate  tail,  and  the  remainder  after  it  therefore  does  not  violate  the 
rule  against  perpetuities.  ==»°  In  any  case  where  a  definite  failure 
of  issue  of  a  living  person  is  meant,  limitations  over  are  hot  within 
the  rule,  because  they  must  take  effect  at  the  end  of  a  life  in 
being.^®^ 

When  a  remainder  limited  in  a  will  is  void  on  account  of  this 
rule,  it  will,  if  possible,  be  construed  to  give  an  estate  tail  in  the 
first  taker,  as  being  as  near  the  testator's  real  intention  as  pos- 
sible.    This  is  called  the  cypres  doctrine  of  construction."^ 

It  is  often  stated  that  a  contingent  remainder  cannot  be  limited 
to  an  unborn  child  of  an  unborn  person.  But  this  is  believed  to  be 
inaccurate.  It  was  founded  on  the  exploded  notion  that  there 
could  not  be  a  "possibility  on  a  possibility." """  In  the  United 
States,  rights  of  entry  for  condition  broken  are  probably  an  ex- 
ception to  the  rule  against  perpetuities,  though  no  sufQcient  reason 
can  be  given  for  making  the  difference.^^*  The  rule  against  per 
petuities  applies  to  equitable  as  well  as  to  legal  estates.     If  they 

1  Kay  &  J.  74;   Trotter  v.  Oswald,  1  Cox,  Cli.  817;    Ex  parte  Davies,  2  Sim. 
(N.  S.)  114;   Roe  V.  Jeffeiy,  7  Term  R.  589;   Barlow  v.  Salter,  17  Ves.  479. 

288  1  Stim.  Am.  St  Law,  §  1415. 

289  Sanders  v.  Cornish,  Cro.  Car.  230;   Love  v.  Wyndham,  1  Mod.  50. 

2  90  Tatton  v.  Mollineux,  Moore,  809;   Retherlck  v.  Chappel,  2  Bulst  28. 

291  Gray,  Perp.  §§  155-158;  Davenport  v.  KIrldand,  156  111.  169,  40  N.  E. 
304;  Terrell  v.  Reeves,  103  Ala.  264,  16  South.  54.  But,  contra.  Child  v. 
Baylie,  Cro.  Jac.  459. 

2  92  Allyn  v.  Mather,  9  Conn.  114;  Vanderplank  v.  King,  3  Hare,  1;  Parfltt 
V.  Hember,  L.  R.  4  Eq.  443;  Humberston  v.  Humberston,  1  P.  Wms.  332; 
Elliott  V.  Elliott,  12  Sim.  276;  Kevern  v.  Williams,  5  Sim.  171.  Cf.  Hampton 
V.  Holman,  5  Ch.  Div.  183;  Routledge  v.  Dorril,  2  Ves.  Jr.  358;  Hale  v.  Pew, 
25  Beav.  335.     But  see  St.  Amour  v.  RIvard,  2  Mich.  294. 

283  See  Gray,  Perp.  §§  287-294.  Contra,  that  they  are  void,  Whitby  v. 
Mitchell,  44  Ch.  Dlv.  85. 

294  Brattle  Square  Church  v.  Grant,  3  Gray  (Mass.)  142;  Hunt  v.  Wright, 
47  N.  H.  396.  Contra,  Dunn  v.  Flood,  25  Ch.  Dlv.  629.  See,  however,  Lon 
don  &  S.  W.  Ry.  Co.  v.  Gomm,  20  Ch.  Div.  562. 


328         ESTATES    A3    TO    TIME    OF    ENJOYMENT — FUTURE    ESTATES.       (Ch.    11 

are  vested  they  are  not  subject  to  the  rule;  otherwise  they  are."' 
The  rule  in  fact  has  principally  to  do  with  cases  of  future  uses 
and  executory  devises.  A  trust  does  not  violate  the  rule  against 
perpetuities  because  it  is  to  continue  indefinitely,  if  it  vests  within 
the  time  required,  because,  as  has  been  seen,  the  rule  against 
per])etuities  is  concerned  with  the  vesting  of  estates,  not  with 
their  duration."'  The  question  of  remoteness  in  connection  with 
mortgages  does  not  seem  to  have  been  raised,  but  Mr.  Gray  thinks 
that  no  good  reason  can  be  assigned  why  it  should  not  apply.^" 
Under  limitations  to  a  class  which  are  void  because  some  of  the 
persons  who  are  to  talce  cannot  be  ascertained  within  the  time 
required  by  the  rule  against  perpetuities,  the  limitations  are  void 
as  to  all  of  the  class,  unless  so  made  that  the  amount  one  is  to 
receive  is  not  affected  by  the  existence  of  the  other  limitations.  In  the 
latter  case  those  limitations  will  be  good  which  can  vest  within  the 
required  time,  and  the  others  will  be  bad."^  Under  limitations 
to  a  series  of  persons,  the  limitation  to  the  first  one  of  the  series 
will  not  be  rendered  void  by  the  fact  that  the  limitations  to  the 
others  are  too  remote.^®' 

Powers. 

The  application  of  the  rule  against  perpetuities  to  powers  is  stated 
by  Mr.  Gray  as  follows:  "(1)  If  a  power  can  be  exercised  at  a 
time  beyond  the  limits  of  the  rule  against  perpetuities  it  is  bad. 
(2)  A  power  which  cannot  be  exercised  beyond  the  limits  of  the 
rule  against  perpetuities  is  not  rendered  bad  by  the  fact  that  with- 
in its  terms  an  appointment  could  be  made  which  would  be  too 
remote.  (3)  The  remoteness  of  an  appointment  depends  upon  its 
distance    from    its    creation,  and    not  from    the  exercise  of  the 

2  95  See  Abbiss  v.  Bumey,  17  Ch.  Div.  211;  Bull  v.  Prltchard,  5  Hare,  567; 
Blagrove  v.  Hancock,  16  Sim.  371. 

29S  Philadelphia  v.  Girard's  Heirs,  45  Pa.  St  9;  Yard's  Appeal,  64  Pa.  St  95. 
Contra,  Slade  v.  Patten,  68  Me.  380. 

2  97  Gray,  Perp.  §§  562-571. 

298  Lowry  v.  Muldrovv,  8  Rich.  Eq.  (S.  C.)  241;  Hills  v.  Simonds,  125  Mass. 
536;  Boughton  v.  Bough  ton,  1  H.  L.  Cas.  406;  Storrs  v.  Benbow,  3  De  Gex, 
M.  &  G.  390;  Wilkinson  v.  Duncan,  30  Beav.  Ill;  Elliott  v.  Elliott  12  Sim.  276. 

299  Goldsborough  v.  Martin,  41  Md.  488;  Caldwell  v.  Willis,  57  Miss.  555; 
Dillon  V.  Reilly,  Ir.  R.  10  Eq.  152;  Liley  v.  Hey,  1  Hare,  580;  Wainman  v. 
Field,  Kay,  507. 


§    203)  RULE    AGAINST    PERPETUITIES.  829 

power."  ""*  The  effect  of  appointments  under  powers  wliich  are 
too  remote  is  the  same  as  for  estates  limited  in  violation  of  the 
rule.^°^ 

Gifts  to  CJiarities. 

The  rule  against  perpetuities  also  applies  to  gifts  to  charities 
In  nearly  all  their  forms.  For  instance,  where  there  is  a  gift  to 
a  charity  with  a  gift  over  to  an  individual,  whether  in  trust  for  him 
or  not,  the  gift  over  is  void  if  it  violates  the  rule.'»°='  So  with  a 
gift  to  an  individual  followed  by  a  remote  gift  over  to  a  charity.^ "^^ 
Again,  property  may  be  held  in  trust  for  an  individual,  to  be  held, 
on  the  happening  of  a  contingency,  for  a  charity.  If  the  contin- 
gency is  too  remote,  the  gift  to  the  charity  is  void.""*  In  the 
case,  however,  of  a  gift  to  one  charity,  with  a  gift  over  to  another, 
the  rule  against  perpetuities  has  been  held  not  to  apply.""""  But 
Mr.  Gray  doubts  the  correctness  of  such  a  holding.' °«  It  has  also 
been  held  that  a  gift  which  could  not  take  effect  at  the  testator's 
death  would  be  held  by  the  court  a  reasonable  time,  at  least,  for 
the  benefit  of  the  charity.'"^ 

«oo  Gray,  Perp.  §  473;  HiUen  v.  IseUn,  144  N.  Y.  865,  89  N.  E.  868;  In  re 
Powell's  Trusts,  39  Law  J.  Ch.  188.     Contra,  Rous  v.  Jackson,  29  Ch.  Div.  521. 

801  Morgan  v,  Gronon,  L.  R.  16  Eq.  1.  The  appointment  is  bad  if  it  might 
vest  at  a  too  remote  period,  though  it  does  not.  Smith's  Appeal,  88  Pa.  St. 
492.  An  appointment  over  on  a  contingency  after  an  appointment  which 
violates  the  rule  is  void  also.  Routledge  v.  Dorrll,  2  Ves.  Jr.  357.  A  power 
collateral  to  an  estate  tail  is  not  void,  since  the  tenant  in  tail  may  bar  it  at 
any  time.  Lantsbery  v.  Collier,  2  Kay  &  J.  709.  A  void  clause  may  be  re- 
jected, and  the  rest  of  the  appointment  stand.  In  re  Teague's  Settlement,  L. 
R.  10  Eq.  564. 

302  Gray,  Perp.  §  593;  Brattle  Square  Church  v.  Grant,  3  Gray  (Mass.)  142; 
Wells  v.  Heath,  10  Gray  (Mass.)  17;  Society  for  Promoting  Theological  Edu- 
cation V.  Attorney  General,  135  Mass.  285;  Palmer  v.  Bank,  17  R.  I.  627,  24 
Atl.  109. 

303  Gray,  Perp.  §  594;  Leonard  v.  Burr,  18  N.  Y.  96;  Smith  v.  Townsend, 
82  Pa.  St.  434;  Commissioners  of  Charitable  Donations  &  Bequests  v.  De 
Clifford,  1  Dru.  &  War.  245;  Attorney  General  v.  GiU,  2  P.  Wms.  309;  In  re 
Johnson's  Trusts,  L.  R.  2  Eq.  716. 

so 4  Gray,  Perp.  §§  595,  596. 

30  5  Christ's  Hospital  v.  Grainger,  16  Sim.  88,  1  McN.  &  G.  460,  approved 
Odell  V.  Odell,  10  Allen  (Mass.)  1,  9;  Jones  v.  Habersham,  107  U.  S.  174,  185, 
2  Sup.  Ct.  336;   Chamberlayne  v.  Brockett,  8  Ch.  App.  206, 

806  Gray,  Perp.  §§  597-603. 

«07  Sinnett  v.  Herbert,  7  Ch.  App.  232. 


330         ESTATES    A3    TO    TIME    OF    ENJOYMENT FUTURE    ESTATES.       (Ch.    11 


SAME— RULE     AGAINST     PERPETUITIES     IN    THE     UNITED 

STATES. 

204.  In  the  United  States  the  rule  against  perpetuities  ex- 

ists as  at  common  law^,  except: 
EXCEPTION — In  some  states  it  is   provided  by  statute 
that  all  future  estates   must  vest  within  two  lives 
in  being. 

As  has  been  stated,  the  mle  against  perpetuities  was  established 
by  construction  of  the  courts.  In  most  American  states  the  rule 
has  been  adopted  as  part  of  the  common  law.  In  some  there  are 
statutes  which  are  merely  declaratory  of  the  common-law  rule. 
In  others  a  different  rule  has  been  provided, — notably,  in  New 
York,  Michigan,  Wisconsin,  and  Minnesota, — and  the  time  is  lim- 
ited to  the  duration  of  two  lives  in  being.**** 

RULE  AGAINST  ACCUMULATIONS. 

205.  At  common  law  the   rents  and  profits  of  land  could 

be  directed  to  be  accumulated  for  the  period  allowed 
by  the  rule  against  perpetuities  for  the  vesting  of 
estates,  but  in  a  number  of  states  statutes  have  pre- 
scribed a  different  period. 

At  common  law,  rents  and  profits  of  an  estate  can  be  directed  to 
be  accumulated  during  the  time  allowed  by  the  rule  against  per- 
petuities.*°^  This,  however,  has  been  restricted  to  a  shorter  time, 
in  many  states,  by  statute.  In  some  states  these  periods  are  meas- 
ured by  minorities;  in  others,  a  definite  number  of  years,  as  10  or 
21,  is  prescribed,  regardless  of  lives  or  minorities.*^"     This  rule 

308  1  Stim,  Am.  St  Law,  §§  1440,  1442.  The  rule  in  these  states  has  been 
discussed  at  length  in  Chapl.  Suspen.  Power.  And  see 'Dean  v.  Mumford,  102 
Mich.  510,  61  N.  W.  7;  Morris  v.  Bolles,  65  Conn,  45,  81  Atl.  538;  Ketchum  v. 
Corse,  65  Conn.  85,  31  Atl.  486. 

809  Thellusson  v.  Woodford,  11  Yes.  112. 

•  10  1  stim.  Am.  St  Law,  §  1443;  Brandt  v.  Brandt  13  Misc.  Rep.  431,  34  N. 
Y.  Supp.  684.  The  English  statute  on  this  subject  is  called  the  "Thellusson 
Act"  (39  &  40   Geo,  III.  c.  98).    And  see  In  re  Woods  [1894]  3  Ch.  381. 


■"§    205)  RULE    AGAINST   ACXTUMULATIONS.  331 

differs,  however,  from  the  rule  against  perpetuities,  in  that  direc- 
tions for  accumulations  are  void  only  as  to  the  excess  after  the 
time  permitted.^ ^^  There  is  some  doubt  as  to  whether  the  rule 
against  accumulations  applies  to  gifts  to  charities.  Where  there 
is  a  present  gift  to  a  charity,  with  directions  to  accumulate  the 
profits,  if  the  directions  are  void  the  property  will  be  applied  to  the 
use  of  the  charity  at  once.'^' 

8111  Stim.  Am.  St  Law,  §  1444;  Odell  v.  Odell,  10  Allen  (Mass.)  1;  Martin 
V.  Maugham,  14  Sim.  230.  But  compare  Southampton  v,  Hertford,  2  Ves.  & 
B.  54;  Curtis  v.  Lukin,  5  Bear.  147.  The  right  to  the  Income  may  be  vested 
and  only  the  enjoyment  postponed.  Smith  v.  Parsons,  146  N.  Y.  116,  40  N.  E. 
736. 

«n  Gray,  Perp.  {  678. 


332  ESTATES    AS    TO    NUMBER    OF    OWNERS JOINT   ESTATES.       (Ch.  12 

CHAPTER  "^nrr. 

ESTATES  AS   TO  NUMBER   OF   OWNERS-JOINT   ESTATES. 

206.  Estates  as  to  Number  of  Owners. 

207.  Joint  Estates. 

208.  Joint  Tenancies. 

209.  Tenancies  in  Common. 

210.  Estates  in  Co-parcenary, 
211-212.  Estates  in  Entirety, 

213.  Estates  in  Partnership. 

214.  Incidents  of  Joint  Estates. 
21&-216.    Partition. 

ESTATES  AS  TO  NUMBER  OF  OWNERS. 

206.  Estates  are  divided  according  to  the  number  of  o-wn-^ 

ers  w^ho  are  entitled  to  possession  at  the  same  time 
into, — 

(a)  Estates  in  severalty,  and 

(b)  Joint  estates. 

JOINT  ESTATES. 

207.  Joint  estates  are   those  -which  are  o-wned  by  two  or 

more  persons.     The  joint  estates  at  common  la-w- 
are,— 

(a)  Joint  tenancies  (p.  333). 

(b)  Tenancies  in  common  (p.  335), 

(c)  Estates  in  co-parcenary  (p.  336). 

(d)  Estates  in  entirety  (p.  337). 

(e)  Estates  in  partnership  (p.  339). 

The  interests  so  far  considered  have  been  those  In  which  the 
right  to  possession  is  in  one  person  at  a  time.  Such  interests  are 
called  estates  in  severalty.  But  these  same  estates,  as  to  quantity, 
quality,  time  of  enjoyment,  etc.,  may  be  held  by  t-wo  or  more  per- 
sons in  an  undivided  ownership,  and  when  so  held  they  are  called 
joint  estates. 


S    208)  JOINT    TENANCIES.  833 


SAME— JOINT  TENANCIES. 

208.  A  joint  tenancy  is  an  o-wnership  of  land  in  commu- 
nity in  equal  undivided  shares  by  virtue  of  a  convey- 
ance whicli  imports  an  intention  that  the  tenants 
shall  hold  one  and  the  same  estate.  The  interests 
of  all  the  tenants  go  to  the  last  survivor.  For  the 
existence  of  a  joint  tenancy  the  follo"wlng  unities 
are  necessary: 

(a)  Unity  of  interest. 

(b)  Unity  of  title. 

(c)  Unity  of  time. 

(d)  Unity  of  possession. 

At  common  law  all  joint  estates  were  presnmed  to  be  joint  ten- 
ancies unless  there  was  a  contrary  provision  in  the  instrument 
creating  them/  but  this  presumption  does  not  now  obtain  in  many 
states.*  Joint  estates  held  by  trustees  or  mortgagees  continue,  how- 
ever, in  many  of  these  states,  to  be  joint  tenancies.^  The  chief  in- 
cident of  a  joint  tenancy  is  the  right  of  survivorship  by  which  the 
interest  of  a  tenant  does  not  pass  to  his  heirs,  but  vests,  after  his 
death,  in  his  co-tenant,  or,  if  there  be  more  than  one,  it  vests  in  all 
of  them.  The  doctrine  of  survivorship  is  applied  until  only  one 
tenant  remains,  who  then  holds  in  severalty,  and  the  land  will  go 
to  his  heirs.*  A  joint  tenancy  is  said  to  be  held  "per  my  et  per  tout.'' 
This  is  translated  by  Blackstone  as  meaning  by  the  half  or  moiety 
and  by  the  whole,"  while  others  translate  it  as  meaning  by  noth- 
ing and  by  the  whole.*  For  the  existence  of  a  joint  tenancy  it  is 
necessary  that  there  be  present  the  four  unities  as  they  are  called.^ 

1  Martin  v.  Smith,  5  Bin.  (Pa,)  16.    Cf.  Caines  v.  Grant,  Id.  U9. 
«  See  post,  p.  335.     On  the  difference  between  tenancies   In  common  and 
Joint  tenancies,  see  Doe  v.  Abey,  1  Maule  &  S.  428. 
«  1  Stim.  Am.  St.  Law,  §  1371,  3,  5. 

*  Overton  v.  Lacy,  6  T.  B.  Mon.  (Ky.)  13;    Spencer  v.  Austin,  38  Vt.  2.8; 
Herbemont's  Ex'rs  v.  Thomas,  1  Cheves,  Eq.  (S.  O.)  21. 

6  2  Bl.  Comm.  182. 

•  Murray  v.  Hall,  7  Man.,  G.  &  S.  440,  note,  445. 
T  De  Witt  V.  San  Francisco,  2  Cal.  289. 


334  ESTATES    AS    TO    NUMBER    OF    OWNERS JOINT    ESTATES.       (Ch.   12- 

These  are  interest,"  title,*  time,^**  and  possession.*^  By  unity  of 
interest,  in  reference  to  joint  tenancy,  is  meant  a  similarity  of  estate, 
as  regards  its  extent  or  duration,  in  each  joint  tenant.  Since  joint 
tenants  hold  under  a  grant  of  a  single  estate,  their  interests  are 
necessarily  the  same  in  extent.  Thus  one  cannot  be  tenant  in  fee 
simple  and  the  others  in  tail,  or  for  life,  or  for  a  term  of  years. 
But  where  two  or  more  are  joint  tenants  for  life,  one  of  them  may 
have  the  inheritance  in  severalty,  subject  to  the  joint  estate;  as 
w  here  land  is  granted  to  A.  and  B.  for  their  lives,  and  to  the  heirs 
or  heirs  of  the  body  of  A.  By  unity  of  the  title  of  joint  tenants  is 
meant  the  creation  of  their  interests  by  one  and  the  same  act;  that 
is,  by  the  same  grant  or  demise.  Joint  tenants  cannot  be  acquired  un- 
der different  titles.  And,  at  common  law,  unity  of  time  of  com- 
mencement of  the  title  was  requisite;  that  is,  the  interests  of  the 
tenants  must  have  vested  at  one  and  the  same  time.  Thus,  if  the 
fee  simple  in  remainder  after  a  life  estate  were  limited  to  the  heirs 
of  A.  and  the  heirs  of  B.,  A.  and  B.  being  alive  at  the  time  of  the 
limitation,  but  subsequently  dying  at  different  times,  their  respec- 
tive heirs  would  not  be  joint  tenants,  but  tenants  in  common;  since 
their  interests  would  not  have  arisen  at  the  same  moment.  But  by 
means  of  limitations  operating  by  way  of  springing  or  shifting  use, 
or  executory  devise,  the  interests  of  joint  tenants  may  be  made  to 
arise  at  different  times.  Unity  of  possession  means  only  a  joint 
right  to  possession,  which  is  essential  to  all  joint  estates.  A  joint 
tenancy  can  be  created  only  by  purchase.  It  cannot  arise  by  de- 
scent.** One  joint  tenant  cannot  convey  the  whole  estate  or  any 
part  by  metes  and  bounds,*'  but  he  may  convey  his  share,  and  such 
a  conveyance  causes  a  severance  of  the  tenancy.**  That  Is,  when 
a  joint  tenant  mortgages  or  conveys  his  share  to  a  stranger,  it 

8  Wlscot'8   Case,   2   Coke,   60b;    Putney   v.    Dresser,   2   Mete.    CVlass.)  583; 
Jones  V.  Jones,  1  Call  (Va.)  458. 
e  De  Witt  V.  San  Francisco,  2  Cal.  289. 

10  Strattan  v.  Best,  2  Brown,  Ch.  233;   Sammes'  Case,  13  Coke,  54. 

11  Thornton  v.  Thornton,  3  Rand.  (Va.)  179. 

12  1  Washb.  Real  Prop.  (5th  Ed.)  676.    Cf.  Putney  v.  Dresser,  2  Mete.  (Mass.) 
583.     But  see  Rev.  St.  Ind.  1894,  §§  2624,  2625. 

18  Porter  v.  Hill,  9  Mass.  34;    Hanks  v.  Enloe,  33  Tex.  G2I. 
1*  Robison  v.   Codman,   1   Sumn.   121,   Fed.   Cas.   No.    11,970;    Davidson  v. 
Heydom,  2  Yeates  (Pa.)  459. 


§    209)  TENANCIES   IN   COMMON.  835 

turns  the  joint  tenancy  into  a  tenancy  in  common  so  far  as  that 
share  is  concerned,  though  the  other  owners  continue  to  hold  as 
joint  tenants  between  themselves  with  all  the  incidents  of  joint 
tenancy.^"^  In  many  states  joint  tenancies  have  been  turned  into  ten- 
ancies in  common  by  statute,  or  the  right  of  survivorship  has  been 
abolished,  or  a  power  to  devise  has  been  given.^' 

SAME— TENANCIES  IN  COMMON. 

209.  A  tenancy  in  common  is  a  joint  o-wnership  of  lands, 
to  -which  the  principle  of  survivorship  does  not  ap- 
ply. The  only  unity  necessary  for  a  tenancy  in 
common  is  that  of  possession. 

A  tenancy  in  common  is  where  two  or  more  hold  the  same  land 
with  interests  accruing  under  different  titles,  or  accruing  under  the 
same  title,  but  at  different  periods,  or  conferred  by  words  of  limi- 
tation importing  that  the  grantees  are  to  take  in  distinct  shares.^^ 
Unity  of  possession  is  necessary  for  a  tenancy  in  common.  A  joint 
tenancy  differs  from  a  tenancy  in  common  in  being  subject  to  the 
right  of  survivorship,  and  in  requiring  the  four  unities,  while  for  a 
tenancy  in  common  only  unity  of  possession  is  necessary.  Though 
the  other  unities  may  exist,  their  presence  is  immaterial.  The  in- 
terests may  be  held  by  several  and  distinct  titles.^*  These  titles 
may  be  acquired  in  different  ways.^*  In  many  of  the  United  States 
all  joint  estates  are  presumed  to  be  tenancies  in  common,  unless 
the  contrary  appears."     Tenancies  in  common  may  be  created  by 

i»  Simpson's  Lessee  v.  Ammons,  1  Bin.  (Pa.)  175;  Brown  v.  Raindle,  S  Ves. 
256. 

le  1  Stim.  Am.  St.  Law,  §§  1871,  2630;  3  Share.  &  B.  Lead.  Gas.  Real  Prop. 
15.  For  exceptions  to  ttie  operation  of  these  statutes,  see  2  Jones,  Real  Prop. 
§§  1783.  1788,  1789. 

IT  1  Steph.  Comm.  323. 

18  Mittel  V.  Karl,  133  lU.  65,  24  N.  E.  553;  Spencer  v.  Austin,  38  Vt.  258; 
Griswold  v.  Johnson,  Conn.  363.  They  may  arise  by  descent,  but  not  at  com- 
mon law.    Fenton  v.  Miller,  94  Mich.  204,  53  N.  W.  957. 

19  2  Bl.  Comm.  192.    And  see  Putnam  v.  Ritchie,  6  Paige  (N.  Y.)  390. 

20  1  Stim.  Am.  St.  Law,  §  1371  B;  3  Shars.  &  B.  Lead.  Cas.  Real  Prop.  20. 
See  Case  v.  Owen,  139  Ind.  22,  38  N.  B.  395. 


336  ESTATES    AS    TO    NUMBER   OP   OWNERS JOINT    ESTATES.       (Ch.   12 

conveyances  expressly  providing  for  such  estates,^^  or  they  may 
arise  by  implication;  as  where  one-half  of  a  parcel  of  land  is  con- 
veyed without  metes  and  bounds,  or  where  a  certain  number  of 
acres  out  of  a  larger  tract  are  conveyed  without  the  particular  part 
being  designated.^^  In  all  cases  of  tenancies  in  common  the  share 
of  each  tenant,  whatever  the  number  of  tenants  may  be,  is  pre- 
sumed to  be  equal  to  the  shares  of  the  others,^'  unless  it  is  other- 
wise expressly  provided,  or  circumstances,  such  as  unequal  contri- 
butions to  the  purchase  price,  rebut  such  a  presumption.''* 

Joint  Mortgagees. 

Many  of  the  rules  governing  joint  estates  apply  to  those  who  hold 
land  in  the  capacity  of  joint  mortgagees.  Under  the  common-law 
theory  of  mortgages,  joint  mortgagees  are,  after  a  strict  foreclo- 
sure, tenants  in  common.^''  Before  the  foreclosure  of  a  mortgage 
given  to  two  or  more  jointly,  the  doctrine  of  survivorship  applies, 
and  the  survivor  may  foreclose  the  mortgage  without  making  the 
heirs  or  the  personal  representative  of  the  deceased  mortgagee  par- 
ties to  the  action.^ ^  If  the  mortgage  is  given  to  secure  debts  which 
are  several,  the  joint  mortgagees  hold  as  tenajits  in  common.''^ 

SAME— ESTATES  IN  CO-PARCENARY. 

210.  An  estate  in  co-parcenary  is  an  cwrnership  of  land  in 
community  in  undivided  shares  by  co-heirs.  Unities 
of  interest,  title,  and  possession  are  necessary  for 
estates  in  co-parcenary.  Estates  in  co-parcenary 
exist  in  only  a  few  states. 

«i  See  Emerson  v.  Cutler,  14  Pick.  (Mass.)  108;  Martin  v.  Smith,  5  Bin. 
(Pa.)  16. 

"2  Preston  v.  Robinson,  24  Vt  583;  Seckel  v.  Engle,  2  Rawle  (Pa.)  68;  Wal- 
lace V.  Miller,  52  Cal.  6.55. 

23  See  Campau  v.  Campau,  44  Mich.  31,  5  N.  W.  1062;  Gregg  v.  Patterson, 
0  Watts  &  S.  (Pa.)  197. 

2*  Rankin  v.  Black,  1  Head  (Tenn.)  G50. 

2  0  Goodwin  v.  Richardson,  11  Mass.  4(59. 

2  6  Appleton  V.  Boyd,  7  Mass.  131.  For  the  application  of  the  principle  of 
Burvivorship  to  the  mortgage  debt,  see  2  Jones,  Mortg.  (5th  Ed.)  §  1382. 

«T  Burnett  v.  Pratt,  22  Pick.  (Mass.)  556;   Brown  v.  Bates,  55  Me.  520. 


§§    211-212)  ESTATES   IN   ENTIRETY.  837 

Under  the  American  rules  of  descent  both  male  and  female  heirs 
may  hold  as  co-parceners,^*  but  under  rules  of  primogeniture  only 
co-heiresses  could  be  co-parceners.^'  An  estate  in  co-parcenary 
arises  only  by  descent.  Co-parceners  may  hold  unequal  interests 
because  some  of  them  may  be  children  and  others  grandchildren. 
The  doctrine  of  survivorship  does  not  apply  to  estates  held  in  co- 
parcenary.'*'  In  an  estate  in  co-parcenary  the  unities  discussed  un- 
der joint  tenancies  are  necessary,  except  the  unity  of  time.*  Es- 
tates in  co-parcenary  differ  from  joint  tenancies  in  that  the  doctrine 
of  survivorship  does  not  apply,  and  that  they  arise  by  descent,  while 
joint  tenancies  arise  only  by  purchase.  In  some  states  this  estate 
has  been  abolished,  and  co-heirs  take  as  tenants  in  common,  though 
in  a  few  the  tenancy  still  exists.'^ 

SAME— ESTATES  IN  ENTIRETY. 

211.  An  estate  in  entirety  is  one  conveyed  to  a  man   and 

his  wife  to  hold  jointly.     The  doctrine  of  survivor- 
ship applies  to  these  estates. 

212.  Estates  in    entirety    have   been    abolished    in   many 

states. 

When  at  common  law  a  joint  estate  was  conveyed  to  a  man  and 
his  wife,  the  effect  was  not  the  same  as  if  the  conveyance  had  been 
to  two  persons  not  married,  but  the  peculiar  joint  holding  known 
as  a  tenancy  in  entirety  arose."  It  is,  of  course,  possible  to  con- 
vey to  a  man  and  his  wife  land  to  be  held  as  a  tenancy  in  common 
or  a  joint  tenancy  by  the  use  of  words  indicating  such  an  inten- 
tion.'"    When  an  estate  was  conveyed  to  a  man  and  his  wife  and 

«8  1  stim.  Am.  St.  Law.  §  1375;   Hoffar  v.  Dement,  5  GiU  (Md.)  132;   GUpin 
V.  Hollinssworth,  3  Md.  190. 
2  9  Co.  Lltt.  §§  241,  242,  254. 

80  2  Bl.  Comm.  188. 
•Id. 

81  1  Stim.  Am.  St.  Law,  §  1375  A. 

8  2  Thornton  v.  Thornton,  3  Rand.  (Va.)  179;  Hnnt  t.  Blackbnrn,  128  U.  8. 
464.  9  Sup.  Ct.  125. 

8  3  Hicks  V.  Cochran,  4  Edw.  Ch.  (N.  Y.)  107;  McDermott  v.  French,  15  N. 
J.  Eq.  78;    Hoffman  r.  Stigers,  28  Iowa,  302;    Fladung  v.  Rose,  68  Md.  18; 

RBAL  PROP. — 22 


338  ESTATES    AS    TO    XU.MlJi:u    uK    (j'.VNKRS JOINT    ESTATES.        (Cli.    12 

a  third  person,  the  husband  and  wife  took  only  one-half,  which  Ihey 
held  as  tenants  in  entirety,  while  the  third  person  took  the  other 
half,  holding  it  in  common,  or  as  a  joint  tenancy,  as  the  case  might 
be,  with  the  husband  and  wife.  So,  if  there  were  more  than  three 
persona  to  whom  the  conveyance  w^as  made,  the  husband  and  wife 
would  together  take  only  one  share.^^  The  doctrine  of  sm'vivor- 
ship  applies  to  estates  in  entirety,  and  they  go  to  the  heirs  of  the 
survivor  only,  the  heirs  of  the  first  deceased  taking  nothing."  Dur- 
ing the  joint  lives  of  the  husband  and  wife  the  husband  has  the 
control  of  the  joint  estate,  and  a  conveyance  made  by  him  will  be 
effectual  during  his  life;"  but  if  he  die  first  she  may  avoid  the 
conveyance.'^  So  land  held  by  this  tenancy  may  be  levied  on  by 
the  husband's  creditors,  but  such  a  conveyance  will  be  no  more 
effectual  against  a  surviving  wife  than  a  voluntary  alienation.^* 
Estates  in  Entirety  in  the  United  States —  Community  System. 

In  some  of  our  states  estates  in  entirety  still  exist.  In  some 
states  the  mamed  women's  acts  are  held  to  have  abolished  them,'* 
though  in  other  states  the  contrary  is  held.*"  In  some  jurisdic- 
tions they  are  treated  as  tenancies  in  common,*^  in  others  as  joint 
tenancies.*^ 

Thornburg  v.  Wiggins,  135  Ind.  178,  34  N.  E.  999.  But  see,  contra,  Stuckey  v. 
Keefe's  Ex'rs,  26  Pa.  St  397. 

84  Barber  v.  Harris,  15  Wend.  (N  Y.)  616;  Jolinson  v.  Hart,  6  Watts  &  S. 
(Pa.)  319. 

3  5  Stuckey  v.  Keefe's  Ex'rs,  26  Pa.  St.  397.  Cf.  Thornton  v.  Thornton,  3 
Rand.  (Va.)  179. 

3  6  Barber  v.  Harris,  15  Wend.  (N.  Y.)  616;  Bennett  v.  Child,  19  Wis.  362; 
Ames  V.  Norman,  4  Sneed  (Tenn.)  683. 

8  7  Pierce  v.  Chace,  108  Mass.  254;  McCurdy  v.  Canning,  64  Pa.  St.  39; 
Chandler  v.  Cheney,  37  Ind.  391 ;   Washburn  v.  Burns,  34  N.  J.  Law,  18. 

8  8  Farmers'  &  Mechanics'  Bank  v.  Gregory,  49  Barb.  (N.  Y.)  155.  And  see 
MoCurdy  v.  Canning,  64  Pa.  St.  39. 

8  8  Cooper  V.  Cooper,  76  111.  57. 

4  0  Bennett  v.  Child,  19  Wis.  362;  Lewis'  Appeal,  85  Mich.  340,  48  N.  W. 
580;  Carver  v.  Smith,  90  Ind.  222;  Zorntlein  v.  Bram,  100  N.  Y.  13,  2  N.  E. 
888;  Diver  v.  Diver,  56  Pa.  St.  106. 

*i  Hoffman  v.  Stigers,  28  Iowa,  302;  Farmers'  &  Merchants'  Nat.  Bank  v. 
Wallace,  45  Ohio  St.  152,  12  N.  E.  439. 

42  Whittlesey  v.  Puller,  11  Conn.  337.  Land  may  be  conveyed  to  husband 
and  wife  as  joint  tenants.  Wilken  v.  Young  (Ind.  Sup.)  41  N.  E.  68.  And  see 
Hiles  V.  Fisher,  144  N.  Y.  806,  39  N.  E.  337. 


§    213)  ESTATES    IX    PARTNERSHIP.  339 

In  a  number  of  our  Southern  and  Western  states,  owing  to  the 
influence  of  French  and  Spanish  law,  a  system  of  property  owner- 
ship by  married  persons  has  been  adopted,  called  the  community 
system.  This  regards  the  relation  of  husband  and  wife,  as  far  as 
their  property  rights  are  concerned,  as  a  kind  of  partnership,  and 
as  such  the  property  is  primarily  liable  for  the  debts  of  the  com- 
munity." The  community  doctrine,  however,  applies  only  to  prop- 
erty acquired  by  the  spouses  during  the  marriage,**  and  even  as  to 
this  property  there  is  merely  a  presumption  that  it  is  held  in  com- 
munity. The  presumption  may  be  rebutted,  and  it  may  be  shown 
that  the  property  belongs  individually  to  the  husband  or  to  the 
wife.*"  The  husband,  under  the  community  system,  has  the  right 
to  control  the  common  property.* «  On  the  death  of  either  spouse 
the  common  property  goes  one-half  to  the  survivor  and  one-half  to 
the  heirs  of  the  deceased.  If  there  are  no  heirs,  then  the  survivor 
takes  it  all.*^ 

SAME— ESTATES  IN  PARTNERSHIP. 

213.  An  estate  in  partnership  is  one  where  land  purchased 
with  partnership  funds  is  held  by  the  members  of 
a  partnership  for  partnership  purposes. 

In  order  that  land  may  be  held  as  an  estate  in  partnership,  it 
must  be  purchased  with  partnership  funds,  and  for  partnership  pur- 
poses.** The  equitable  title  to  such  property  belongs  to  the  part- 
nership as  an  entity  in  severalty,  the  legal  title  being  held  in  trust 

43  Jones  V.  Jones,  15  Tex.  143;  Carter  v.  Conner,  60  Tex.  52.  But  see  Chaffe 
V.  Mcintosh,  36  La.  Ann.  824.  It  is  also  liable  for  any  debts  of  the  husband. 
Adams  v.  Knowlton,  22  Cal.  283;  Forbes  v.  Dunham,  24  Tex.  611.  And  for 
the  wife's  antenuptial  debts.  Vlautin  v.  Bumpus,  35  Cal.  214;  Taylor  v.  Muii)hy, 
50  Tex.  291. 

44Pancoast  v.  Pancoast,  57  Cal.  320;  Althof  v.  Conheim,  38  Cal.  230; 
Burns  v.  Thompson.  39  La.  377,  1  South.  913. 

4  5  Cooke  V.  Bremond,  27  Tex.  457;  McDonald  t.  Badger,  23  Cal.  393;  Higgins 
V.  Higgins,  46  Cal.  259;   Schuyler  v,  Broughton,  70  Cal.  282,  11  Pac.  719. 

46  1  Stim.  Am.  St.  Law,  §  6433. 

47  1  stim.  Am.  St.  Law,  art.  340. 

4  8  Hoxie  V.  Carr,  1  Sumn.  173,  Fed.  Cas.  No.  6,802;  Alkire  v.  Kahle,  123  IlL 
496,  17  N.  E.  693;   Buchan  v.  Sumner,  2  Barb.  Ch.  (N,  Y.)  165. 


340  ESTATES    AS    TO    NUMBER    OF    OWNERS JOINT    ESTATES.       (Ch.    12 

for  the  firm.^'  The  \e^a\  title  may  be  in  one  partner  '^°  or  in  all 
the  partners.  In  the  latter  case  they  hold  as  tenants  in  common.'*^ 
The  firm's  interest  in  the  land  is  i^ersonalty,"-  and  is  primarily  lia- 
ble for  partnership  debts.'**  The  surplus,  if  any,  goes  to  the  part- 
ners as  tenants  in  common.''* 

INCIDENTS  OF  JOINT  ESTATES. 

214.  The  rights  of  tenants  of  joint  estates  will  be  treated 
under  the  follovsring  heads: 

(a)  Possession  and  disseisin  (p.  340). 

(b)  Accounting  between  co-tenants  (p.  341), 

(c)  Repairs  and  waste  (p.  342). 

(d)  Transfer  of  joint  estates  (p.  343). 

(e)  Actions  affecting  joint  estates  (p.  343). 

Possession  and  Disseisin. 

The  owners  of  joint  estates  have  in  general  all  the  rights  of  own- 
ers in  severalty  except  the  right  to  sole  possession."*  Therefore 
the  possession  of  one  tenant  of  a  joint  estate  is  not  adverse  to  his 
co-tenants,^^  but  it  may  be  made  so  by  an  actual  disseisin  of  the 
other  tenants,  such  as  a  known  denial  of  their  rights,  or  a  long  ex- 
clusive possession  without  accounting  for  the  rents  and  profits. ''^ 

*9  Fall-child  v.  Fairchild,  64  N.  Y.  471;  Dyer  v.  Clark,  5  Mete.  (Mass.)  562; 
Paige  V.  Paige,  71  Iowa,  318,  32  N.  W.  360. 

BO  Williams  v.  Shelden,  61  Mich.  311,  28  N.  AV.  115;  Fairchild  v.  Fairchild,  64 
N.  Y.  471. 

Bi  Pepper  v.  Pepper,  24  111.  App.  316;  Dyer  v.  Clarli,  5  Mete.  (Mass.)  562; 
Howard  v.  Priest,  Id.  582. 

52  Arnold  v.  Wainwright,  6  Minn.  358  (Gil.  241).    And  see  ante,  p.  24. 

63  Buchan  v.  Sumner,  2  Barb.  Ch.  (N.  Y.)  165;  Galbraith  v.  Gedge,  16  B. 
Mon.  (Ky.)  631. 

64  Strong  V.  Lord,  107  111.  25;   Buchan  v.  Sumner,  2  Barb.  Ch.  (N.  Y.)  165. 
BBWood  V.  Phillips,  43  N.  Y.  152;    Erwin  v.  Olmsted.  7  Cow.  (N.  Y.)  229; 

Gower  v.  Quintan,  40  Mich.  572. 

66  Clapp  V.  Bromagham,  9  Cow.  (N.  Y.)  530;  Challefoux  v.  Ducharme,  4  Wis. 
554. 

67  M'Clung  V.  Ross,  5  Wheat.  116;  Puckett  v.  McDaniel,  8  Tex.  Civ.  App. 
630,  28  S.  W.  860;  Cameron  v.  Railway  Co.,  60  Minn.  100,  61  N.  W.  814; 
LLscomb  v.  Root,  8  Pick.  (Mass.)  376;    Cummings  v,  Wyman,  10  Mass.  464; 


§    214)  INCIDENTS    OF    JOINT    ESTATES.  341 

So  one  co-tenant  may  disseise  the  others  by  conveying  the  whole  of 
the  estate  to  a  stranger,  if  the  conveyance  is  followed  by  possession 
by  the  grantee/®  One  co-tenant  cannot  let  the  joint  property  be 
sold  for  taxes,  and  purchase  it  himself;  if  he  does  so,  his  title  will 
not  be  good  against  his  co-tenants.''®  Nor  can  a  co-tenant  set  up 
any  other  adverse  title  in  himself  or  in  another.^" 
Accounting  hetween  Co- Tenants. 

Trespass  quare  clausum  does  not  lie  against  a  co-tenant  for  taking 
the  crops  nor  for  cutting  trees,^^  though  one  tenant  may  recover  his 
proportion  if  the  whole  has  been  sold  by  the  other  tenant.®'*  So  one 
tenant  cannot  recover  rent  from  his  co-tenant  when  the  latter  has 
been  occupying  the  joint  premises,"®  though  the  rule  is  otherwise  in 

Blackmore  v.  Gregg,  2  Watts  &  S.  (Pa.)  182;  Feliz  v.  Feliz,  105  Cal.  1,  38  Pac. 
521.  There  must  be  an  actual  ouster.  Mansfield  v.  McGinnis,  86  Me.  118,  2P 
Atl.  956. 

°8  Clapp  V.  Bromagham,  9  Cow.  (N.  Y.)  530;  Kinney  v.  Slattery,  51  Iowa, 
353,  1  N.  W.  626.  But  see  Noble  v.  Hill,  8  Tex.  Civ.  App.  171,  27  S.  W.  756; 
Caldwell  v.  Neely,  81  N.  C.  114;  Price  v.  Hall,  140  Ind.  314,  39  N.  E.  941. 
Such  a  conveyance  must  be  followed  by  possession,  or  there  will  be  no  ouster 
of  the  other  tenants.  New  York  &  T.  Land  Co.  v.  Hyland,  8  Tex.  Civ.  App. 
601,  28  S.  W.  206.  Such  a  purchaser  fi'ora  one  co-tenant  is  not  estopped  to  set 
up  a  title  adverse  to  that  of  the  joint  owners.  Watkins  v.  Green,  101  Mich. 
493,  60  N.  W.  44. 

eo  Dubois  v.  Campau,  24  Mich.  360;  Page  v.  Webster,  8  Mich.  263;  Conn  v. 
Conn,  58  Iowa,  747,  13  N.  W.  51;  Clark  v.  Rainey,  72  Miss.  151,  16  Soutb.  499. 
And  see  Bracken  v.  Cooper,  80  111.  221;  Montague  v.  Selb,  106  111.  49. 

6  0  Roth  well  V.  Dewees,  2  Black,  613;  Van  Home  v.  Fonda,  5  Johns.  Ch.  (N. 
Y.)  388;  Davis  v.  Givens,  71  Mo.  94.  An  adverse  title  purchased  by  one 
tenant  inures  to  the  benefit  of  the  others  only  when  they  pay  their  proportion 
of  the  cost.  McFarlin  v.  Leaman  (Tex.  Civ.  App.)  29  S.  W.  44.  When  the 
co-tenants  hold  in  remainder,  the  purchase  of  the  preceding  life  estate  by  one 
tenant  does  not  inure  to  the  benefit  of  the  others.  McLaughlin  v.  McLaughlin, 
80  Md.  115,  30  Atl.  607.  Cf.  Roberts  v.  Thorn,  25  Tex.  728;  Kirkpatrick  v. 
Mathiot,  4  Watts  &  S.  (Pa.)  251.  See,  also,  Palmer  v.  Young,  1  Vern.  276; 
Hamilton  v.  Denny,  1  Ball  &  B.  199. 

61  Filbert  v.  Hoff,  42  Pa.  St.  97. 

6  2  Abbey  v.  Wheeler,  85  Hun,  226,  32  N.  Y.  Supp.  1069;  McGahan  v.  Bank, 
156  U.  S.  218,  15  Sup.  Ct.  347;  Hayden  v.  Merrill.  44  Vt.  336;  Richardson  v. 
Richardson,  72  Me.  403.    But  see  Calhoun  v.  Curtis,  4  Mete.  (Mass.)  413. 

6  3  McLaughlin  v.  McLaughlin,  80  Md.  115,  30  Atl.  607;  Sargent  v.  Parsons, 
12  Mass.  149;  Woolever  v.  Knapp,  18  Barb.  (N.  Y.)  265;  Valentine  v.  Healey, 
8«  Hun,  259,  33  N.  Y.  Supp.  246;   Thomas  v.  Thomas,  5  Exch.  28;   Henderson 


342  ESTATES    AS    TO    NUMBER    OF    OWNERS JOINT    ESTATES.        (Ch.   12 

some  states  by  statute,®*  and  there  may  be  such  a  recovery  if  the 
land  has  been  leased,  and  the  whole  of  the  rent  collected  by  one  ten- 
ant.®" A  co-tenant  has  no  claim  for  improvements  which  he  has 
made  on  the  common  property,'®  though  he  may  be  given  the  benefit 
of  them  in  a  partition  of  the  land.®^ 

Repairs  and  Waste. 

One  co-tenant  may  make  necessary  repairs,  and  enforce  contribu- 
tion therefor  against  the  other  tenants.®"  One  tenant  in  possession 
of  the  joint  property  may  become  liable  to  his  co-tenants  for  waste 
if  he  does  acts  which  amount  to  a  destruction  of  the  property.®*  The 
technical  rules  of  waste,  however,  do  not  apply.  There  must  be 
some  actual  injury  to  the  estate,  or  the  liability  is  not  incurred.^" 
A  tenant  in  possession  may  be  restrained  by  injunction  from  ma- 
licious injury  to  the  property.''^ 

r.  Eason,  17  Q.  B.  701.  One  tenant  may  take  a  lease  from  his  co-tenants. 
Valentine  v.  Healey,  86  Hun,  259,  33  N.  Y.  Supp.  246. 

8*  1  Stlm.  Am,  St.  Law,  §  1378;  3  Shars.  &  B.  Lead.  Cas.  Real  Prop.  98.  And 
see  McParland  v.  Larkin,  155  IlL  84,  39  N.  E.  609. 

8  0  Miner  v.  Lorman,  70  Mich.  173,  38  N.  W.  18;  Reynolds  v.  Wilmeth,  45 
Iowa,  693. 

6  8  Rico  Reduction  &  Mining  Co.  v.  Musgrave,  14  Colo.  79,  23  Pac.  458;  Scott 
V.  Guernsey,  48  N.  Y.  106. 

6  7  Kurtz  V.  Hibner,  55  111.  514;  Alleman  7.  Hawley,  117  Ind.  532,  20  N.  E. 
441. 

68  Stewart  v.  St-^wart  (Wis.)  63  N.  W.  886;  Leigh  v.  Dickeson,  12  Q.  B.  Div. 
194;  Ward  v.  Ward's  Heirs  (W.  Va.)  21  S.  E.  746;  Pickering  v.  Pickering,  63 
N.  H.  468,  3  Atl.  744;  Dech's  Appeal,  57  Pa,  St:  467;  Beaty  v.  Bordwell,  91 
Pa.  St  438;  Alexander  v.  Ellison,  79  Ky.  148;  Fowler  v.  Fowler,  50  Conn. 
256;  Haven  v.  Mehlgarten,  19  111.  91.  But  see  Calvert  v.  Aldrlch,  99  Mass. 
74.  But  there  is  no  lien  on  the  land  to  secure  such  expenditures.  Branch 
V.  Makeig  (Tex.  Civ.  App.)  28  S.  W.  1050.  But  see,  as  to  improvements  by  a 
co-parcener,  Ward  v.  Ward's  Heirs  (W.  Va.)  21  S.  E.  746.  Co-tenants  must 
contribute  for  expenses  incurred  in  defending  the  common  title.  Gosselin  v. 
Smith,  154  111.  74,  39  N.  E.  9S0. 

89  Dodge  V.  Davis,  85  Iowa,  77,  52  N.  W.  2;  Childs  v.  RaQroad  Co.,  117  Mo. 
414,  23  S.  W.  373;  Wilkinson  v.  Hay  garth,  12  Q.  B.  837.  But  see  Walt  v. 
Richardson,  33  Vt.  190.  The  amount  of  recovery  is  apportioned  according  to 
the  interests  of  the  several  ownei-s.  McDodrill  v.  Lumber  Co.  (W.  Va.)  21  8. 
E.  878. 

70  Martyn  v.  Knowllys,  8  Term  R.  145. 

71  Ballou  V.  Wood,  8  Cush.  (Mass.)  48.  But  see  Hihn  v.  Peck,  18  Cal.  640; 
Obert  V.  Obert,  5  N.  J.  Eq.  397. 


§    214)  INCIDENTS    OF   JOINT    ESTATES.  343 

Tramfer  of  Joint  Estates. 

All  tenants  of  joint  estates  except  those  holding  in  entirety" 
may  convey  all  or  part  of  their  interests  to  a  stranger  without  the 
consent  of  their  co-tenants."  But  they  cannot,  by  such  convey- 
ance, pass  a  valid  title  to  any  separate  part  of  the  common  prop- 
erty.'^*  So  a  tenant  of  a  joint  estate  cannot  dedicate  land  to  the 
public  for  a  street"  It  has  already  been  said  that  one  joint  ten- 
ant, by  conveying  to  a  stranger,  severs  the  joint  tenancy,^'  but  such 
a  tenant  cannot  devise  his  share,  unless  he  be  the  last  survivor.''^ 
A  co-parcener  may  pass  his  interests  by  devise.'" 

Actions  Affecting  Joint  Estates. 

For  injuries  to  the  possession  of  a  joint  estate  or  to  rights  grow- 
ing out  of  possession,  the  co-tenants  should  sue  jointly."^'  Joint 
tenants  at  common  law  must  join  in  an  action  affecting  the  title," 

7  2McCurdy  v.  Canning,  64  Pa,  St  39;  Ames  v.  Norman,  4  Sneed  (Tenn.) 
683;  Arnold  v.  Arnold,  30  Ind.  805. 

7  8  Peabody  v.  Minot,  24  Pick.  (Mass.)  329;  Barnes  v.  Lynch,  151  Mass.  510, 
24  N.  E.  783;  Butler  v.  Roys,  25  Mich.  53;  Rector  v.  Waugh,  17  Mo.  13;  Simp- 
son's Lessee  v.  Ammons,  1  Bin.  (Pa.)  175.  Rights  of  curtesy  and  dower  in 
joint  estates  have  already  been  considered,  ante,  pp.  79,  92.  For  the  words  of 
limitation  necessary  to  pass  a  fee  in  conveyances  by  joint  owners,  see  ante, 
p.  37. 

T4  Porter  v.  Hill,  9  Mass.  34;  Varnum  v.  Abbot,  12  Mass.  474.  So,  also, 
as  to  levy  of  execution,  Bartlet  v.  Harlow,  12  Mass.  348;  Starr  v.  Leavitt,  2 
Conn.  243;  Butler  v.  Roys,  25  Mich.  53;  Peabody  v.  Minot,  24  Pick.  (Mass.) 
329;   Thompson  v.  Barber,  12  N.  H.  563. 

7  8  Scott  v.  State,  1  Sneed  (Tenn.)  629.  Cf.  Stevens  v.  Town  of  Norfolk,  48 
Conn.  227,  and  Stevens  v.  Battel!,  49  Conn.  156. 

TB  Ante,  p.  334. 

7T  Wilken  v.  Young  (Ind.  Sup.)  41  N.  E.  68;  Duncan  v.  Forrer,  6  Bin.  (Pa.) 
193.  But  see  Nichols  v.  Denny,  37  Miss.  69.  The  interest  of  a  Joint  tenant 
may  be  sold  on  execution.     Midgley  v.  Walker,  101  Mich.  583,  60  N.  W.  296. 

7  8  1  Washb.  Real  Prop.  (5th  Ed.)  684. 

79  Decker  v.  Livingston,  15  Johns.  (N.  Y.)  479;  De  Puy  v.  Strong,  87  N.  Y. 
372;  Daniels  v.  Daniels,  7  Mass.  135;  Gilmore  v.  Wilbur,  12  Pick.  (Mass.)  120. 
As  on  a  joint  lease  for  the  recovery  of  rent.  Sherman  v.  Ballon.  8  Cow. 
(N.  Y.)  304;  Wall  v.  Hinds,  4  Gray  (Mass.)  256.  But  see  Hayden  v.  Paterson, 
51  Pa.  St.  261. 

80  Wheat  v.  Morris,  21  D.  C.  11;  Marshall  v.  Palmer,  91  Va.  344,  21  8.  B. 
672;  Webster  v.  Vandeventer,  6  Gray  (Mass.)  428;  Dewey  v.  Lambier,  7  Cal. 
347.  But  see  Lowery  v.  Rowland,  104  Ala.  420,  16  So.  88;  Morgan  r.  Hudnell 
(Ohio  Sup.)  40  N.  E.  716. 


344  ESTATES    A3    TO    NUMBER    OF    OWNERS JOINT    ESTATES.       (Ch.   12 

but  by  statute  in  some  states  tenants  of  joint  estates  may  join  or 
not,  as  they  choose.*^  Tenants  in  common  and  co-parceners  cannot 
bring  joint  action  when  the  title  is  involved." 


PARTITION. 

215.  Partition  is  the  dividing  of  land  held  by  the  owners 

of  joint  estates  into  distinct  portions,  so  that   each 
may  hold  his  share  in  severalty. 

216.  There  may  be  a  partition  of  all  kinds  of  joint  estates 

except  tenancies  in  entirety. 

Partition  may  be  either  voluntary  ^^  or  compulsory.  Voluntary  par- 
litiou  cannot  be  by  parol  ^*  except  for  tenancies  in  co-parcenai-y,*" 
though  many  cases  give  effect  to  a  parol  partition  when  followed  by 
possession  of  the  shares  in  severalty."  Rights  may  be  acquired 
under  such  partition  by  long  possession.*^  Voluntary  partition 
should  be  made  by  mutual  deeds.  Joint  estates  may  be  so  created 
that  partition  of  them  cannot  be  had,**  but,  in  the  absence  of  such 

81  3  Sbars.  &  B.  Lead.  Cas.  Real  Prop.  20. 

8  2  Inhabitants  of  Kehobotli  v.  Hunt,  1  Pick.  (Mass.)  224;  Hill  v.  Gibbs,  5 
Hill  (N,  Y.)  56.    And  see  Mooers  v.  Bunker,  29  N.  H.  420. 

88  But  see  as  to  riglits  of  third  persons,  Emson  v.  Polhemus,  28  N.  J.  Eq. 
439. 

s*  Duncan  v.  Sylvester,  16  Me.  388;  Dan  v.  Longstreet,  18  N.  J.  Law,  405. 
But  see  Ebert  v.  Wood,  1  Bin.  (Pa.)  210;   Wood  v.  Fleet,  36  N.  Y.  499. 

85  2  Bl.  Comm.  324;  Wildey  v.  Bonney's  Lessee,  31  Miss.  644;  Boiling  v. 
Teel,  76  Va.  487. 

8  8  Wolf  V.  Wolf,  158  Pa.  St.  621,  28  Atl.  KM;  Jackson  v.  Harder.  4  Johns. 
(N.  Y.)  202;    Shepard  v.  Rinks,  78  III.  188;    Buzzell  v.  Gallagher,  28  Wis.  678. 

8T  Manly  v.  Pettee,  38  111.  128;  Taylor  v.  Millard,  118  N.  Y.  244,  23  N.  E. 
876;  Mellon  v.  Reed,  114  Pa.  St.  647,  8  Atl.  227;  McMahan  v.  McMahan,  13 
Pa.  St.  376.  See  further,  as  to  parol  partition,  2  Jones,  Real  Prop.  §§  1940- 
1950. 

8  8  Winthrop  v.  Minot,  9  Gush.  (Mass.)  405;  Hunt  v.  W^right,  47  N.  H.  396. 
So  there  may  be  a  valid  agreement  not  to  partition.  Coleman  v.  Coleman,  19 
Pa.  St.  100;  Eberts  v.  Fisher,  54  Mich.  294,  20  N.  W.  80;  Avery  v.  Payne,  12 
Mich.  540.  But  see  Mitchell  v.  Starbuck,  10  Mass.  5;  Keau  v.  Tilford,  81  Ky. 
600. 


§§  215-21(5;  PARTITION.  345 

a  provision,  any  joint  estate  except  estates  in  entirety  may  be  di- 
vkled  at  the  suit  of  one  of  the  tenants  without  the  consent  of  the 
others.^®  But  when  compulsory  partition  is  souglit  it  must  be  for 
the  whole  estate,  and  not  for  part  of  it.^°  At  common  law,  parti- 
tion could  be  compelled  against  the  consent  of  the  co-tenants  only 
in  the  case  of  co-parcenary.®^  The  right  to  compel  partition  by  an 
action  at  law  was  first  given  by  the  statutes  of  31  Hen.  VIII.  c.  1, 
and  32  Hen.  VIII.  c.  32.  These  statutes  have  been  re-enacted  in 
most  of  the  United  States.^^  The  remedy  is  now,  however,  almost 
exclusively  in  courts  of  chancery,  or  is  by  a  special  form  of  action 
provided  by  statute.®^  Partition  can  be  had  only  by  those  having 
seisin  and  possession;  therefore  there  can  be  no  partition  of  joint 
estates  in  reversion  or  remainder.®*  In  New  York  and  a  few  other 
states  vested  remainders  are  excepted  from  this  rule.®'  In  an  ac- 
tion for  partition  all  the  co-tenants  must  be  made  parties,"^  as  well 
as  all  other  persons  interested  in  the  lands,  such  as  lienholders,  or 
they  will  not  be  bound  by  the  action,®^  The  action  of  partition  is 
a  local  action  in  rem.®^  Questions  of  title  cannot  be  settled  in  an 
action  for  partition.®'*     The  actual  division  of  the  land  in  partition 

89  Willard  v.  Willard,  145  U.  S.  116,  12  Sup.  Ct.  818;  Rohn  v.  Harris,  130 
111.  525,  22  N.  E.  587;  Danville  Seminary  v.  Mott,  136  III.  289,  28  N.  E.'54; 
Smith  V.  Smith,  10  Paige  (N.  Y.)  470. 

»o  Duncan  v.  Sylvester,  16  Me.  888. 

91 1  Washb.  Real  Prop.  (5th  Ed.)  710. 

9  2  1  Washb.  Real  Prop.  (5th  Ed.)  711.  And  see  Hall  v.  Piddock,  21  N,  J. 
Eq.  311;   Ford  v.  Knapp,  102  N.  Y.  135,  6  N.  E.  283. 

9  3  1  Washb.  Real  Prop.  (5th  Ed.)  723,  note;  Buckley  v.  Superior  Court.  102 
Cal.  6,  36  Pac.  360;   Bailey  v.  Sisson,  1  R.  I.  233. 

9  4  Hodgkinson,  Petitioner,  12  Piclc.  (Mass.)  374;  Bragg  v.  Lyon,  93  N.  C.  151. 
And  see  as  to  disseisees,  Rickard  v.  Rickard,  13  Pick.  251. 

05  Hilliard  v.  Scoville,  52  111.  449;  Howell  v.  Mills,  56  N.  Y.  226;  Jenkins  v. 
Fahey,  73  N.  Y.  355;    Smalley  v.  Isaacson,  40  Minn.  450,  42  N.  W.  352. 

9  6  Holman  v.  Gill,  107  111.  467. 

9  7  De  Uprey  v.  De  Uprey,  27  Cal.  330;  Bogert  v.  Bogert,  53  Hun,  629,  5  N. 
Y.  Supp.  893;  Cornish  v.  Gest,  2  Cox,  Ch.  27.  But  cf.  Sebring  v.  Mersereau, 
9  Cow.  (N.  Y.)  344;  Stewart  v.  Bank,  101  Pa.  St.  342. 

98  Bonner,  Petitioner,  4  Mass.  122;    Corwithe  v.  Griffing,  21  Barb.  (N.  Y.)  9. 

99  Fenton  v.  Circuit  Judge,  76  Mich.  405,  43  N.  W.  437;  Fuller  v.  Montague, 
8  C.  C.  A.  100,  59  Fed.  212.  Cf.,  however,  Welch's  Appeal,  126  Pa.  St.  297.  17 
Atl.  623;   Hayes'  Appeal,  123  Pa.  St  110,  16  Atl.  600. 


346  ESTATES    AS    TO    NUMBER    OF    OWNERS JOINT    ESTATES.       (Ch.    12 

is  made  by  commissioners  appointed  by  the  com't.^""  If  an  equita- 
ble division  cannot  be  made,  one  of  tlie  co-tenants  may  be  given  a 
larger  share  than  the  other,  and  he  be  decreed  to  pay  the  other  a 
sum  of  money  called  the  owelty  of  partition.^ °^  This  cannot  be 
done,  however,  without  his  consent.^"*  When  one  co-tenant  has 
made  improvements  on  the  joint  property,  for  which  the  others  have 
not  contributed,  the  court  may,  in  its  discretion,  give  him  the  land 
on  which  those  improvements  stand. ^*"  Two  or  more  co-tenants 
may  have  their  interests  set  off  to  them  to  be  held  in  severalty  as 
regards  the  other  tenants,  but  jointly  between  themselves.^"*  If 
the  estate  to  be  pai-titioned  consists  of  a  number  of  parcels,  each 
parcel  need  not  be  divided,  but  the  partition  may  be  made  by  as- 
signing the  sepai'ate  parcels  to  different  tenants.^" ^  Some  kinds  of 
property,  such  as  mills  and  factories,  cannot  be  divided,  In  which 
case  either  an  owelty  of  partition  must  be  paid  by  the  one  who  takes 
the  whole  property,  or  the  property  must  be  sold,  and  the  money 
divided. ^""^  Probate  courts  in  many  states  have  power  to  make 
partition  of  estates  over  which  they  have  acquired  jurisdiction.^"^ 
After  voluntary  partition,  if  the  title  to  the  part  which  one  co- 
tenant  has  received  fails,  such  tenant  has  no  remedy  against  his 
former  co-tenants.^ "^  But,  if  the  partition  was  compulsory,  each  co- 
tenant  is  in  the  position  of  a  warrantor  of  the  title  of  the  shares 

100  Enyard  v.  Nevins  (N.  J.  Cli.)  18  Atl.  192;  Dondoro  v.  Vansickle,  11  Nev. 
389. 

101  Green  v.  Arnold,  11  R.  I.  3G4;  Dobbin  v.  kex,  106  N.  C.  444,  US.  E.  260. 
And  see  Marks  v.  Sewall,  120  Mass.  174;   Stewart  v.  Bank,  101  Pa.  St.  342. 

102  Whitney  v.  Parker,  63  N.  H.  416.  And  see  Corrothers  v.  JoUiffe,  32  W. 
Va.  562,  9  S.  E.  889. 

10  s  Town  V.  Needbam,  3  Paige  (N.  Y.)  545;  St.  Felix  v.  Rankin,  3  Edw.  Ch. 
(N.  Y.)  323;    Brookfleld  v.  Williams,  2  N.  J.  Eq.  341. 

104  Abbott  V.  Berry,  46  N.  H.  369.  And  see  Colton  v.  Smith,  11  Pick.  (Mass.) 
311. 

105  iiagar  v.  Wiswall,  10  Pick.  (Mass.)  152. 

106  King  V.  Reed,  11  Gray  (Mass.)  490;  Higginbottom  v.  Short,  25  Miss.  160; 
Crowell  V.  Woodbury,  52  N.  H.  613.  But  see  Hills  v.  Day,  14  Wend.  (N.  Y.) 
204;  Miller  v.  Miller,  13  Pick.  (Mass.)  237. 

107  Appeal  of  Wistar,  115  Pa.  St.  241,  8  AtL  797;  Hurley  v.  Hamilton,  37 
Minn.  160,  33  N.  W.  912. 

losWeiser  v.  Weiser,  5  Watts  (Pa.)  279;  Beardsley  v.  Knight,  10  Vt  185; 
Morrice's  Case,  6  Coke,  12b. 


§§  215-216)  PARTITION.  347 

of  the  others,  and,  in  the  event  of  a  failure  of  title,  a  new  partition 
may  be  compelled,  or  there  may  be  a  reliance  on  the  warranty.^""* 
Therefore,  one  co-tenant  cannot  set  up  an  adverse  title  against  the 
others  after  partition.*^" 

109  But  that  a  new  partition  cannot  be  compelled  against  an  alienee  after 
partition,  see  1  Washb.  Real  Prop.  (5th  Ed.)  723. 

110  Venable  v.  Beauchamp,  3  Dana  (Ky.)  321.    But  of.  Coleman  v.  Coleman, 
3  Dana  (Ky.)  398. 


548  INCOUPOREAL    HEREDITAMENTS.  ^  (Ch.   13- 

CHAPTER  XTTT. 

INCORrOREAL   HEREDITAMENTS. 


217. 

Definition  and  Kinds. 

218. 

Easements. 

219. 

Creation. 

220. 

By  Grant. 

221. 

By  Prescription. 

222. 

Classification. 

223. 

Incidents. 

224. 

Destruction. 

22o. 

SiJecific   Easements. 

226. 

Rights  of  Way. 

227. 

Highways. 

22S. 

Light  and  Air. 

229-230. 

Lateral  and  Subjacent  Support. 

2.31. 

Party  Walls. 

232. 

Easements  in  Water. 

233. 

Profits  a  Prendre. 

234-23,^). 

Rents. 

236. 

Franchises. 

DEFINITION  AND  KINDS. 

217.  An  incorporeal  hereditament  is  anything,  the  subject 
of  property,  -which  is  inheritable,  and  not  tangible 
or  visible. 

217a.  Incorporeal  hereditaments  in  the  United  States  are 

(a)  Easements  (p.  349). 

(b)  Commons,  or  profits  a  prendre  (p.  373). 

(c)  Rents  (p.  375). 

(d)  Franchises  (p.  378). 

Hereditaments  are  said  to  be  either  corporeal  or  incorporeal.  A 
corporeal  hereditament  is  any  right  of  property  which  entitles  the 
person  in  whom  it  is  vested  to  the  possession  of  the  land.  An  in- 
corporeal hereditament  is  any  right  of  property  which  is  not  a  right 
to  the  possession  of  land.     Incorporeal  hereditaments  differ  from 


§    218)  EASEMENTS.  349 

corporeal  hereditaments  chiefly  in  that  they  are  rights  issuing  out  of 
land,  rather  than  rights  to  land.  The  term  "incorporeal  heredita- 
ments" is  used  by  some  writers  to  include  future  estates,  and  the 
interests  in  realty  which  we  are  considering  are  distinguished  as 
"hereditaments  purely  incorporeal."  The  distinction  between  cor- 
poreal and  incorporeal  hereditaments  was,  in  the  early  law,  of  some 
importance;  since  rights  to  the  possession  of  land  were  transferable 
only  by  delivery  of  such  possession,  while  rights  not  involving  pos- 
session of  land  were  transferable  by  deed  of  grant.  Corporeal  here^ 
ditaments  were  therefore  said  to  "lie  in  livery,"  ^  while  incorporeal 
hereditaments  were  said  to  *^ie  in  grant."  ^  This  distinction,  how- 
ever, is  not  now  of  practical  importance;  for  in  modem  law  cor- 
poreal as  well  as  incorporeal  hereditaments  are  transferable  without 
actual  delivery  of  possession.  Other  differences  between  the  two 
kinds  of  property  will  be  noticed  as  we  proceed  with  the  discussion 
of  the  various  lends  of  incorporeal  hereditaments.  As  enumerated 
by  Blackstone:  *  'incorporeal  hereditaments  are  principally  of  ten 
sorts:  Advowsons,  tithes,  commons,  ways,  offices,  dignities,  fran- 
chises, corodiey  or  pensions,  annuities,  and  rents."  However,  only 
a  few  of  these  are  now  of  any  importance  in  this  country,  and  of  the 
others  no  further  mention  will  be  m8.de. 

EASEMENTS. 

*218.  An  easement  is  a  right  in  the  cwrier  of  one  parcel 
of  land,  by  reason  of  such  ownership,  to  use  the 
land  of  another  foi  a  special  purpose  not  inconsist- 
ent with  tho  general  property  in  the  latter.* 

Easements  are  rights  which  one  man  may  exercise  over  the  land 
of  another."  These  rights  can  exist  only  in  connection  with  some 
other  land  called  the  dominant  estate,  while  the  land  over  which 
the  right  is  exercised  is  called  the  servient  estate.     Looked  at  from 

»  Drake  v.  Wells,  11  Allen  (Mass.)  141;    Huflf  v.  McCauley,  53  Pa.  St.  200. 
s  1  Washb.  Real  Prop.  (5th  Ed.)  37. 
8  2  Comm.  21. 
«  2  Washb.  Real  Prop.  25. 

e  Wolfe  V.  Frost,  4  Sandf.  Ch.  (N.  Y.)  72;  Wagner  v.  Hanna,  38  Cal.  Ill; 
Harrison  v.  Boring,  44  Tex.  255;   PeiTin  v.  Garfield,  37  Vt.  304. 


350  INCORPOREAL    UERKDITAMENTS.  (Ch.    13 

the  standpoint  of  the  owner  of  the  dominant  estate,  the  right  is  an 
easement,  but  from  the  standpoint  of  the  servient  estate  it  is  a  servi- 
tude. According  to  Mr.  Washburn:^  "The  essential  qualities  of 
easements  are:  (1)  Thej  are  incorporeal;  (2)  they  are  imposed  on 
corporeal  property,  and  not  upon  the  owner  thereof;  (3)  they  confer 
no  right  to  a  participation  in  the  profits  arising  from  such  property; 
(4)  they  are  imposed  for  the  benefit  of  corporeal  property;  (5)  there 
must  be  two  tenements, — ^the  dominant,  to  which  the  right  belongs; 
and  the  servient,  upon  which  the  obligation  rests." 

It  is  thus  seen  that  easements  differ  from  licenses  principally  in 
their  duration,  for  licenses  are  generally  only  to  do  a  number  of 
specific  acts  on  the  land  of  the  licensor.  So,  too,  licenses  are,  as  we 
have  seen  J  for  the  most  part,  revocable,  while  easements  are  not.^ 
Easements  differ  also  from  commons  or  profits  k  prendre,  which  will 
be  discussed  later  in  this  chapter,®  in  that  an  easement  never  gives 
the  right  to  take  anything  from  the  corpus  of  the  servient  estate.^" 

SAME— CREATION. 

219.  Easements  are  created 

(a)  By  grant  (p.  350). 

(b)  By  prescription  (p.  352). 

220.  BY  GRANT — Easements  may  be   created  by  grant, 

■wrhich  includes  easements  arising  under  covenants 
and  by  implied  grants.  The  grant  of  an  easement 
must  be  in  -writing. 

Easements  may  be  created  by  grants,  like  other  interests  in  land.^^ 
They  need  not  be  created  in  fee,  but  may  be  for  a  limited  term.^* 

«  Washb.  Easem.  (4th  Ed.)  3. 
T  Ante,  p.  167. 

8  Hills  V.  Miller,  8  Paige  (N.  Y.)  254;  Ex  parte  Coburn,  1  Cow.  (N.  Y.)  568; 
Foster  v.  Browning,  4  R.  L  47;    Wallis  v.  Harrison,  4  Mees.  &  W.  538. 

9  Post,  p.  373. 

10  Huntington  v.  Asher,  9G  N.  Y.  G04;  Post  v.  Pearsall,  22  Wend.  (N.  Y.)  425; 
Huff  V.  McCauley,  53  Pa.  St.  206. 

11  Cronkhite  v.  Cronkhite,  94  N.  Y.  323;  Wiseman  v.  Lueksinger,  84  N.  Y. 
814;   Forbes  v,  Balenseifer,  74  111.  183;   Duinneen  v.  Rich,  22  Wis.  550. 

12  Curtis  V.  Gardner,  13  Mete.  (Mass.)  457;  Jamaica  Pond  Aqueduct  Corp.  v. 
Chandler,  9  Allen  (Mass.) 


§§    219-220)  CREATION    OF    EASEMENTS.  351 

Tkey  cannot  be  created  by  parol,  and  an  attempt  to  do  so  would  give 
only  a  license,  wtdcli  would  be  revocable.^'  Easements  may,  how- 
ever, be  either  granted  or  reserved.^*  When  an  easement  is  appur- 
tenant to  an  estate,  it  passes  by  a  grant  of  the  dominant  estate,  with- 
out express  mention.^  °  Easements  are  sometimes  conveyed  by  im- 
plication. These  are  called  easements  of  necessity,  and  exist  when- 
ever they  are  necessary  to  the  enjoj-ment  of  the  estate  conveyed.^® 
Easements  are  often  raised  by  covenants.  A  number  of  lots  are 
sometimes  conveyed  with  covenants  by  the  grantee  of  each  lot  that 
he  will  not  build  within  a  certain  distance  of  the  street.  Such  cove- 
nants are  held  to  impose  a  servitude  on  each  lot  in  favor  of  the  oth- 
ers.^^  In  equity,  also,  there  may  be  easements  between  two  parcels 
of  land  owned  by  the  same  person,  although  this  is  not  possible  at 
law.^*  For  instance,  an  owner  of  two  lots  may  construct  a  drain 
for  one  of  them  across  the  other,  and  then  sell  either  of  them.     In 

13  Taylor  v.  Millard,  118  N.  Y.  244,  23  N.  E.  376;  Wiseman  v.  Lucksinger, 
84  N.  Y.  31;  Cronkhlte  v.  Cronkhite,  94  N.  Y,  323;  Tinker  v.  Forbes,  136  111. 
221,  26  N.  E.  503;  Minneapolis  W.  Ry.  Co.  v.  Minneapolis  &  St.  L.  Ry.  Co.,  58 
Minn.  128,  59  N.  W  983.  But  see  Wilkinson  v.  Suplee,  166  Pa.  St.  315,  31 
Atl.  36. 

1*  Bowen  V.  Conner,  6  Cush.  (Mass.)  132;  Inhabitants  of  Wintlirop  v.  Fair- 
banks, 41  Me.  307;  Emerson  v.  Mooney,  50  N.  H.  315;  Ashcroft  v.  Railroad  Co., 
126  Mass.  196;  Jones  v.  Adams,  162  Mass.  224,  38  N.  E.  437;  Sullivan  v. 
Eddy,  154  111.  199,  40  N.  E.  482.  There  must  be  a  sufficient  description  of  the 
easement.  Wells  v.  Tolman,  88  Hun,  438,  34  N.  Y.  Supp.  S40;  Nunnelly  t. 
Iron  Co.,  94  Tenn.  397,  29  S.  W.  361.     Cf.  Borst  v.  Empie,  5  N.  Y.  33. 

10  Underwood  v.  Carney,  1  Cush.  (Mass.)  285;  Morgan  v.  Mason,  20  Ohio, 
402.    Cf.  Grant  v.  Chase,  17  Mass.  443. 

isBoland  v.  St.  John's  Schools,  163  Mass.  229,  39  N.  E.  1035;  Atkins  v. 
Bordman,  2  Mete.  (Mass.)  457;  Nichols  v.  Luce,  24  Pick  (Mass.)  102;  Weynand 
V.  Lutz  (Tex.  Civ.  App.)  29  S.  W.  1097.    See  post,  p.  359. 

17  Tulk  V.  Moxhay,  2  Phil.  Ch.  774;  Tallmadge  v.  Bank,  26  N.  Y.  105;  Win- 
field  V.  Henning,  21  N.  J.  Eq.  188;  Peck  v.  Conway,  119  Mass.  540.  So  an 
agreement  to  clean  and  repair  a  water  course  which  has  been  granted  through 
covenantor's  land  was  held  to  run  with  the  land.  Holmes  v.  Buckley,  Prec 
Ch.  39.  But  see  Keates  v.  Lyon,  4  Ch.  App.  218;  Renals  v.  Cowlishaw,  11 
Ch.  Div.  860;  Haywood  v.  Building  Soc,  8  Q.  B.  Div.  403;  Sharp  v.  Ropes, 
110  Mass.  381;   Norcross  v.  James,  140  Mass.  188,  2  N.  E.  940. 

18  Johnson  v.  Jordan,  2  Mete.  (Mass.)  234;  Lampman  v.  Milks,  21  N.  Y. 
505;  Watts  v.  Kelson,  6  Ch-  App.  166.  But  see  Suffield  v.  Brown,  4  De  Gex, 
J.  &  S.  185;  Thomson  v.  Waterlow,  L.  R.  6  Eq.  36. 


352  INCORPOREAL    HEREDITAMICNTS.  (Cll.    13 

such  case,  if  he  transfer  the  dominjuit  estate,  the  right  to  drain 
across  the  remaining  lot  will  continue,  and  the  same  result  may  ob- 
tain if  he  transfers  the  servient  estate  to  one  who  has  knowledge  of 
the  existence  of  the  drain,  and  the  easement  is  necessary  to  the  en- 
joyment of  the  other  lot.^®  Easements  of  this  character  and  those 
created  by  covenants  are  often  called  equitable  easements. 

221.  BY  PRESCRIPTION'— Easements  may  be  acquired  by 
prescription  by  adverse  user  continued  for  the  time 
required  by  the  statute  of  limitations. 

At  common  law  many  easements  were  acquired  by  prescription,^" 
but  it  was  held  that  prescription  presumed  a  grant.^^  The  acquire- 
ment of  easements  by  prescription  is  now  superseded  by  the  doctrine 
of  the  statute  of  limitations.^^  To  acquire  an  easement  by  prescrip- 
tion, it  must  have  been  exercised  from  time  immemorial,^'  but  by  the 
statute  of  limitations,  20  years  is  the  time  required,  and  in  some 
states  even  a  less  period  is  provided  by  the  statute.^*  The  char- 
acter of  the  acts  necessary  for  gaining  an  easement  under  the  statute 
of  limitations  and  by  the  doctrine  of  prescription  are  the  same,  and 
the  term  "prescription"  is  generally  used  to  denote  the  former.  The 
user  must  be  uninterrupted^^  and  continuous,  according  to  the  nature 

19  Thayer  v.  Payne,  2  Cusb.  (:Mass.)  327;  Tyer  v.  Carter,  1  Hurl.  &  N.  91G; 
Dunklee  v.  Railroad  Co.,  24  X.  H.  489;  Seymour  v.  Lewis,  13  N.  J.  Eq.  439. 
But  see  Nicholas  v.  Chamberlain,  Cro.  Jac.  121;  Johnson  v.  Jordan,  2  Mete. 
(Mass.)  234;  Collier  v.  Pierce,  7  Gray  (Mass.)  18;  Carbrey  v.  Willis,  7  Allen 
(Mass.)  364;  Randall  v.  McLaughlin,  10  Allen  (Mass.)  366;  Buss  v.  Dyer,  123 
Mass.  287;    Butterworth  v.  Crawford,  46  N.  Y.  349. 

20  Cross  V.  Lewis,  2  Barn.  &  C.  686;  Mayor  of  Kingston  v.  Horner,  Cowp. 
102. 

21  Webb  V.  Bird,  13  C.  B.  (N.  S.)  841;  Mayor  of  Kingston  v.  Horner,  Cowp. 
102. 

22  Claflin  V.  Railroad  Co.,  157  Mass.  489,  32  N.  E.  659;  Jones  v.  Crow,  32 
Pa.  St.  398;  Rlcard  v.  Williams,  7  Wheat.  59. 

23  Melvin  v.  Whiting,  10  Pick.  (Mass.)  295.  See  Mayor  of  Kingston  v.  Horner, 
Cowp.  102.  And  see  Kent  v.  Waite,  10  Pick.  (Mass.)  138.  The  term  "prescrip- 
tion" is,  however,  often  used  when  the  statute  of  limitations  Is  meant. 

»*  Sibley  v.  Ellis,  11  Gray  (Mass.)  417;    Carger  v.  Fee,  140  Ind.  572,  39  N. 

E.  93;   Boyd  v.  Woolwine  (W.  Va.)  21  S.  E.  1020;   1  Stim.  Am.  St.  Law,  §  228L 

SB  Pollard  v.  Barnes,  2  Cush.  (Mass.)  191;   Livett  v.  Wilson,  3  Bing.  115.    A 


I    221)  CREATION    OF   EASEMENTS.  358 

of  the  easement."  The  statute  does  not  begin  to  run  while  the  own- 
er of  the  servient  estate  is  under  disability.''  So  the  period  of  lim- 
itation does  not  begin  against  a  reversioner  or  remainder-man  until 
he  is  entitled  to  possession  of  the  estate."  The  use  of  the  easement 
must  be  under  an  adverse  claim  of  right,  though  color  of  title  is  not 
necessary.-^  S^uch  use  cannot  be  adverse  if  it  is  begun  with  the 
permission  of  the  owner  of  the  servient  estate,"  or  by  his  license."* 
User  will  not  be  sufficient  to  establish  the  right  if  it  is  secret."  The 
period  of  adverse  occupancy  required  by  the  statute  need  not  be  all 
by  one  person,  but  may  be  by  a  number  if  they  are  in  privity."  It 
should  be  observed  that  the  public  cannot  acquire  an  easement  by 

right  of  flowage  may  be  acquired  by  prescription.  Williams  v.  Barber  (Mich.) 
62  N.  W.  155. 

2  9  Bodfish  V,  Bodfish,  105  Mass.  817;  Cox  v.  Forrest,  60  Md.  74;  Iselln  v. 
Starln,  144  N.  Y.  453,  39  N.  E.  488;  Humphreys  v.  Blasingame,  104  Cal.  40, 
87  Pac.  804;  Dalton  v.  Angus,  6  App.  Cas.  740,  affirming  Angus  v.  Dalton,  4 
Q.  B.  Dlv.  162;  Dare  v.  Heathcote,  25  Law  J.  Exch.  245.  For  user  held  In- 
sufficient to  establish  an  easement  across  a  railroad  company's  right  of  way, 
see  Andries  v.  Railway  Co.  (Mich.)  63  N.  W.  526.  And  for  acts  held  insufficient 
to  create  easements  In  water  by  prescription,  see  Green  Bay  &  M.  Canal  Co.  v. 
Kaukauna  Water  Power  Co.,  90  Wis.  370,  61  N.  W.  1121;  Mason  v.  Hortou, 
67  Vt  266.  31  Atl.  291. 

27  Reimer  v.  Stuber,  20  Pa.  St.  458.  Disability  arising  after  the  user  is  begun 
dees  not  Interrupt  the  acquisition  of  the  right.  Tracy  v.  Atherton,  36  Vt.  503; 
Wallace  v.  Fletcher,  30  N.  H.  434.  Contra,  Lamb  v.  Crosland,  4  Rich.  Law 
(S.  C.)  536. 
2  8  Schenley  v.  Com.,  36  Pa.  St.  29;  Pentland  v.  Keep,  41  Wis.  490. 
29  Burbank  v.  Fay,  65  N.  Y.  57;  Bachelder  v.  Wakefield,  8  Cush.  (Mass.)  248; 
Blanchard  v.  Moulton,  63  Me.  434;  Richard  v.  Hupp  (Cal.)  37  Pac.  920.  And 
see  post,  p.  460. 

so  Smith  v.  Miller,  11  Gray  (Mass.)  145;  Perrin  v.  Garfleld,  37  Vt.  304;  Calger 
V.  Fee  (Ind.  Sup.)  39  N.  E.  93.  See  Atkins  v.  Bordman,  2  Mete.  (Mass.)  457. 
That  no  easement  is  acquired  by  the  use  of  a  way  maintained  by  the  owner 
of  the  land  for  his  own  convenience,  see  Wood  v.  Reed  (Sup.)  30  N.  Y.  Supp.  112. 
81  Wiseman  v.  Lucksinger,  84  N.  Y.  81;  Cronkhite  v.  Cronkhite,  94  N.  Y.  323; 
Johnson  v.  Skillman,  29  Minn.  95,  12  N.  W.  149;  Colchester  v.  Roberts,  4  Mees. 
&  W.  769. 

3  2  Cook  V.  Gammon,  93  Ga.  298,  20  S.  E.  332;  Daniel  v.  North,  11  East,  372. 
But  when  the  user  is  open  and  uninterrupted,  the  servient  owner  is  charged 
with  notice.     Bushey  v.  Santiff,  86  Hun,  384,  33  N.  Y.  Supp.  473. 

33  Melvin  V.  Whiting,  13  Pick.  (Mass.)  184;  Hill  v.  Crosby,  2  Pick.  (Mass.) 
466. 

BKAX.  PROP. — 28 


3o-i  INCORPOREAL    HEREDITAMENTS,  (Cll.    13 

prescription,^*  tlioui^li  a  dedication  may  be  presumed  from  use  by 
tbe  public.^' 

SAME— CLASSIFICATION. 

222.  The  principal  classifications  of  easements  are  the  fol- 
lowing: 

(a)  Continuous  and  discontinuous. 

(b)  Appendant  or  appurtenant  and  in  gross. 

(c)  Negative  and  afQ.rniative. 

(d)  Natural  and  conventional. 

There  are  a  number  of  classifications  of  easements,  which,  though 
they  have  no  great  value  in  law,  are  often  met  with  in  the  books, 
and  therefore  wUl  be  briefly  mentioned  here.  The  first  of  these  is 
the  distinction  between  continuous  and  discontinuous  easements, 
which  arises  from  the  nature  of  the  use  of  the  easement,^®  An  ex- 
ample of  the  former  is  a  right  to  lateral  or  subjacent  support,'^ 
while  a  right  of  way  is  an  instance  of  a  discontinuous  easement, 
since  the  right  is  only  exercised  at  intervals.^*  Another  classifica- 
tion of  easements  is  that  which  divides  them  into  easements  ap- 
pendant or  appurtenant  and  easements  in  gross.^'  The  former  class 
comprise  easements  proper,  which  cannot  be  severed  from  the  tene- 
ment with  which  they  are  connected;  that  is,  an  easement  belongs 
to  an  estate  and  not  to  a  person.  But  easements  in  gross  are  not 
connected  with  any  parcel  of  land,  and  exist  in  a  person  or  in  the 
public.*"     Highways  are  easements  of  this  kind,  and  there  may  be 

8*Pearsall  v.  Post,  20  Wend.  (N,  Y.)  Ill;  Ackerman  v.  Shelp,  8  N.  J.  Law, 
125. 

«e  Verona  Borough  v.  Allegheny  Val.  R.  R.,  152  Pa.  St.  368,  25  Atl.  518; 
Kelenk  v.  Town  of  Walnut  Lake,  51  Minn.  381,  53  N.  W.  703. 

8  8  Larsen  v.  Peterson  (N.  J.  Ch.)  30  Atl.  1094;  Fetters  v.  Ilumphreys,  18  N. 
J.  Eq.  260. 

87  See  post,  p.  365. 

88  See  post,  p.  359. 

89  Dennis  v.  Wilson,  107  Mass.  591;  Spensley  v.  Valentine,  34  Wis.  154; 
McMahon  v.  WiUiams,  79  Ala.  288. 

*o  See  Abbot  v.  Weekly,  1  Lev.  176;  Fitch  v.  Rawling,  2  H.  Bl.  393;  Mounsey 
V.  Ismay,  1  Hurl.  &  C.  729,  3  Hurl.  &  C.  486;  Hall  v.  Nottingham,  1  Exch. 
Div.  1;    Tyson  v.  Smith,  9  Adol.  &  E.  406;    Nudd  v.  Hobbs,  17  N.  H.  524; 


§    223)  INCIDENTS    OF    EASEMENTS.  355 

easements  in  gross  in  respect  to  the  flowage  of  water. ■'^  Easements 
are  also  divided,  with  respect  to  the  obligation  imposed  on  the  owner 
of  the  servient  estate,  into  negative  easements  and  alBrmative  ease- 
ments. Under  the  former  the  owner  of  the  servient  estate  is  pro- 
hibited from  doing  some  acts  of  ownership  on  his  own  property,  as  an 
easement  that  land  shall  not  be  built  upon,*^  while  in  the  case  of  an 
affirmative  easement  the  owner  of  the  servient  estate  is  merely  re- 
quired to  permit  something  to  be  done  on  his  land,  such  as  piling 
materials  on  it*^  Easements  are  also  divided  into  natural  and  con- 
ventional. The  former  exist  as  the  outgrowth  of  natural  rights, 
and  are  necessary,  as  a  matter  of  course,  for  the  enjoyment  of  the 
dominant  estate.  Instances  of  natural  easements  are  rights  to  sup- 
port of  land  and  to  the  flowage  of  water.**  Conventional  easements, 
on  the  other  hand,  are  those  which  are  created  by  the  agreements  of 
the  parties,  and  add  rights  to  the  dominant  estate,  which,  though 
not  strictly  necessary,  add  to  its  enjoyment,  such  as  rights  of  way  or 
to  light  and  air.*' 

SAME— INCIDENTS. 

2S3.  The  principal  riglits   and  incidents  growing   out  of 

easements  are  the  following: 

(a)  The  dominant  owner  must  use  his  easement,  and  the 

servient  owner  his  estate,  in  a  reasonable  manner. 

(h)  The  dominant  owner  must  repair  the  easement. 

(c)  The  servient  owner  must  not  obstruct  the  easement. 

Knowles  v.  Dow,  22  N.  H.  387.  Such  rights  do  not  exist  in  some  states.  Acker- 
man  V.  Shelp,  8  N.  J.  Law,  125.  An  easement  cannot  be  granted  in  gross  so 
that  it  will  be  assignable.  Ackroyd  v.  Smith,  10  C.  B.  164;  Boatman  y.  Lasley, 
23  Ohio  St.  614.  See  Garrison  v.  Rudd,  19  111.  558,  and,  contra,  Goodrich  v. 
Burbank,  12  Allen  (Mass.)  459;  Amidon  v.  Harris,  113  Mass.  59.  Nor  to  give 
a  right  of  action  against  a  third  person.    Hill  v.  Tupper,  2  Hurl.  &  C.  121. 

*i  De  Witt  v.  Harvey,  4  Gray  (Mass.)  486;  Bissell  v.  Grant,  35  Conn.  288; 
Poull  V.  Mockley,  33  Wis.  482. 

42  Hills  V.  Miller,  3  Paige  (N.  Y.)  254. 

48  Voorhees  v.  Burchard,  55  N.  Y.  98;  Big  Mountain  Imp.  Co.'s  Appeal,  54 
Pa.  St.  361.    And  see  Melvin  v.  Whiting,  13  Pick.  (Mass.)  184. 

44  Laumier  v.  Francis,  23  Mo.  181. 

48  Stokoe  v.  Singers,  8  El.  &  Bl.  31. 


35G  INCORPOREAL   HEREDITAMENTS.  (Ch.    13 

Use  of  the  Easement. 

The  owner  of  the  dominant  estate  must  make  his  use  of  the  ease- 
ment reasonable,  so  as  to  interfere  as  little  as  possible  with  the 
servient  owner's  enjoyment  of  his  land.**"  On  the  other  hand,  the 
latter  must  not  use  his  estate  in  such  a  way  as  to  obstruct  the  ease- 
ment or  unreasonably  interfere  with  its  enjoyment.*^  The  j;Tant  of 
an  easement  includes  a  grant  of  all  rights  necessary  for  its  use.  But 
the  use  of  an  easement  must  be  confined  to  the  object  for  which  it  is 
granted.^' 

Repairs  of  the  Easement. 

In  the  absence  of  a  contract  providing  otherwise,  the  owner  of  the 
dominant  estate — that  is,  the  one  who  has  the  benefit  of  the  ease- 
ment— must  keep  it  in  repair  and  condition  for  use.*®  The  ease- 
ment carries  with  it  the  right  to  do  anything  necessary  to  make  re- 
pairs."' 

Obstruction  of  the  Easeme?it. 

The  owner  of  the  dominant  estate  may  have  an  action  for  the 
obstruction  of  his  easement  by  the  servient  owner,  though  no  actual 
damage  has  been  caused."     The  owner  of  the  dominant  estate  may 

*«  Kaler  v.  Beaman,  49  Me.  207. 

4T  Wells  V.  Tolman,  88  Hun,  438,  34  N.  Y.  Supp.  840;  Bakeman  v.  Talbot, 
J81  N.  Y.  366;  Gerrish  v.  Shattuck,  132  Mass.  235;  Welch  v.  Wilcox,  101  Mass. 
162;  Williams  v.  Clark,  140  Mass.  238,  5  N.  B.  802;  Connery  v.  Brooke,  73 
Pa-  St.  80.  Cf.  Baker  v.  Frick,  45  Md.  337;  Attorney  General  v.  Williams, 
140  Mass.  329,  2  N.  E.  80,  and  3  N.  E.  214.  Plowing  part  of  land  over  which 
'there  is  a  right  of  way  is  not  necessarily  an  interference  with  the  easement. 
Moffitt  V.  Lytle,  165  Pa.  St.  173,  30  Atl.  922.  A  contract  to  permit  the  use 
•of  a  wall  for  a  sign  space  is  an  easement,  and  implies  the  right  of  such  access 
ito  the  wall  as  is  necessarj-  for  the  purijose  Indicated.  Gunning  v.  Cusack,  50 
111.  App.  290. 

4  8  Shaughnessey  v.  Leary,  162  Mass.  108,  38  N.  E.  197;  Waters  v.  Lumber 
Co.,  ll.")  N.  C.  f)4S.  20  S.  E.  718.  And  see  post,  p.  360.  Nor  can  the  use  of  the 
dominant  tenement  be  changed  so  as  to  increase  the  burden.  Wood  v.  Saund- 
ers, 10  Ch.  App.  582. 

4»  Washb.  Easem.  &  Serv.  (4th  Ed.)  730;  Doane  v.  Badger,  12  Mass.  65. 
But  cf.  Pomfret  v.  Rlcroft,  1  Saund.  321;  Morrison  v.  Marquardt,  24  Iowa,  35. 

60  Thayer  v.  Payne,  2  Cush.  (Mass.)  327;  Prescott  v.  White,  21  Pick.  (Mass.) 
341;  WilUams  v.  Safford,  7  Barb.  (N.  Y.)  309;    Hamilton  v.  White,  5  N.  Y.  9. 

61  Joyce  V.  Conlin,  72  Wis.  607,  40  N.  W.  212;  McCord  v.  High,  24  Iowa,  336; 
Amoskeag  Manuf 'g  Co.  v.  Goodale,  46  N.  H.  53.  For  acts  held  not  to  constitute 


§    224)  DESTRUCTION    OF    EASEMENTS.  357 

also  remove  obstructions  to  his  easement,  and  may  enter  upon  tlie 
servient  estate  for  that  purpose."  In  cases  where  the  title  to  the 
easement  is  clear,  the  owner  of  the  servient  estate  may  be  restrained 
by  injunction  from  obstructing  it." 


SAME— DESTRUCTIOM*. 

224.  Easements  may  be  destroyed 

(a)  By  release. 

(b)  By  abandonment. 

(c)  By  license  to  the  servient  cwner. 

(d)  By  misuser. 

(e)  By  merger. 

An  easement  mav  be  released  to  the  owner  of  the  servient  estate^ 
but  such  release  is  not  good  if  by  parol,  unless  it  be  executed.'*  Ease- 
ments may  also  be  lost  by  abandonment,'^'*  but  this  does  not  apply 
where  the  easement  has  been  granted,  unless  there  has  been  claim 
of  adverse  right.'*  Easements  are  lost  by  abandonment  only  when 
they  have  been  acquired  by  prescription.'*^     An  easement  may  also 

an  obstruction,  see  Green  t.  Goff,  153  111.  534,  39  N.  B.  975.  That  a  gate  is 
not  an  obstruction  of  a  right  of  way,  see  Hailman  v.  Fick,  167  Pa.  St.  18,  81 
Atl.  342.    But  see  Rowe  v.  Nally,  81  Md.  367,  32  Atl.  198. 

6  2  Joyce  V.  Conlin,  72  Wis.  607,  40  N.  W.  212;   McCord  v.  High,  24  Iowa,  336. 

5  3  Herman  v.  Roberts,  119  N.  Y.  37,  23  N.  E.  442;  Frey  v.  Lowden,  70  Gal. 
550,  11  Pac.  83S;  Stallard  v.  Gushing,  76  Gal.  472,  18  Pac.  427;  Schnitzius  v. 
Bailey  (N.  J.  Err.  &  App.)  32  Atl.  219;    Martin  v.  Price  [1894]  1  Gh.  276. 

54  Dyer  v.  Sanford,  9  Mete.  (Mass.)  395;  Gomstock  v.  Sharp  (Mich.)  64  N. 
W.  22.  A  right  to  use  a  stairway  in  a  building  may  be  destroyed  by  the  de- 
struction of  the  building.    Douglas  v.  Goonley,  84  Hun,  158,  32  N.  Y.  Supp.  444. 

55  Snell  V.  Levitt,  110  N.  Y.  595,  18  N.  E.  870;  Ganny  v.  Andrews,  123  Mass. 
155;  Hickox  v.  Railroad  Go.,  78  Mich.  615,  44  N.  W.  143;  Town  of  Freedom 
V.  Norris,  128  Ind.  377,  27  N.  E.  869;  Steere  v.  Tiffany,  13  R.  I.  568;  Richard 
r.  Hupp  (Gal.)  37  Pac.  920.  But  see  Jones  v.  Van  Bochove,  103  Mich.  98, 
SI  N.  W.  342;  Pratt  v.  Sweetser,  68  Me.  344;  Duncan  v.  Rodecker  (Wis.)  62 
N.  W.  533;    Suydam  v.  Dunton,  84  Hun,  500,  32  N.  Y.  Supp.  333. 

5  6  Butterfield  v.  Reed,  160  Mass.  361,  35  N.  E.  1128;  Barnes  v.  Lloyd,  112 
Mass.  224;    Riehle  v.  Heulings,  38  N.  J.  Eq.  20;    Ford  v.  Harris  (Ga.)  22  S. 

B.  144;   Edgerton  v.  McMuUan,  55  Kan.  90,  39  Pac.  1021;   Lovell  v.  Smith,  a 

C.  B.  (N.  S.)  120.    See,  also,  Ward  v.  Ward,  7  Exch.  838. 

67  Bannon  v.  Angier,  2  Allen  (Mass.)  128;   Barnes  v.  Lloyd,  112  Mass.  224; 


358  INCORPOREAL    nEREDITAMENTS.  (Ch.    13 

be  destroyed  by  a  license  to  the  owner  of  the  servient  estate  to  do 
acts  upon  his  hind  which  interfere  with  the  exercise  of  the  ease- 
ment; "  for  instance,  an  easement  of  light  and  air  may  be  lost  by 
;i  permission  given  the  servient  owner  to  erect  a  wall  on  his  land 
which  would  obstruct  the  li^ht.""  If  the  owner  of  the  dominant 
•  state  does  anything  which  increases  the  burden  of  the  easement, 
he  thereby  destroys  his  easement,  unless  the  increase  of  burden  can 
lie  separated  from  the  original.***  Easements  are  also  destroyed  by 
merger;  that  is,  by  a  union  of  the  dominant  and  servient  estates 
in  the  same  person."*  But  if  the  dominant  estate  is  of  greater  dura* 
tion  than  the  servient,  the  easement  will  only  be  suspended  during 
the  continuance  of  the  servient  estate.®^  And  if  the  title  to  the  lat- 
ter estate  is  subsequently  defeated,  the  result  is  the  same, — a  mere 
suspension  of  the  easement.**^  "\Mien  there  is  a  merger,  the  ease- 
ment is  extinguished,  and  is  not  renewed  by  a  subsequent  grant  of 
the  dominant  estate,  though  the  same  or  a  similar  easement  may  be 
implied,  or  may  arise  by  necessity.®* 

Smyles  v.  Hastings,  22  N.  Y.  217;  Wiggins  v.  McCleary,  49  N.  Y.  346;  NitzeU 
V.  Paschall,  3  Rawie  (Pa.)  76;  Lindeman  v.  Lindsey,  69  Pa.  SL  93;  Erb  v. 
Brown,  Id.  216;  Bombaugh  v.  Miller,  82  Pa.  St  203.  But  see  Owen  v.  Field, 
102  Mass.  90. 

5  8  Morse  v.  Copeland,  2  Gray  (Mass.)  302;  Addison  v.  Hack,  2  GUI  (Md.)  221; 
Liggins  V.  Inge,  7  Bing.  682. 

e»  Winter  v.  Brockwell,  8  East,  308.  See,  also,  Morse  v.  Copeland,  2  Gray 
(Mass.)  302. 

«o  Washb.  Easem.  &  Serv.  (4th  Ed.)  704;  Jones  v.  Tapling,  11  C.  B.  (N.  S.) 
283.     Cf.  Harvey  v.  Walters,  L.  R.  8  C.  P.  162. 

ei  McAllister  v.  Devane,  76  N.  C.  57;   Ritger  v.  Parker,  8  Gush.  (Mass.)  145. 

«2  Thomas  v.  Thomas,  2  Cromp.,  M.  &  R.  34.  / 

6  3  Tyler  V.  Hammond,  11  Pick.  (Mass.)  193;  Dewal  v.  Becker,  81  Md.  537, 
82  Atl.  308. 

e*  Hurlburt  v.  Firth,  10  Phila.  (Pa.)  135;  Kiefifer  v.  Imhoff,  26  Pa,  St  438; 
Miller  v.  Lapham,  44  Vt  416;  Hazard  v.  Robinson,  8  Mason,  272,  Fed.  Gas. 
No.  6,281. 


§    226)  RIGHTS    OF    WAY.  359 


SPECIFIC  EASEMENTS. 

225.  The  following  specific  easements  will  be  considered: 

(a)  Rights  of  way  (p.  359). 

(b)  Highways  (p.  361). 

(c)  Light  and  air  (p.  363). 

(d)  Lateral  and  subjacent  support  (p.  365). 

(e)  Party  walls  (p.  366). 

(f)  Easements  in  water  (p.  368). 

SAME— RIGHTS  OF  WAY. 

226.  A  right  of  way  is  an  easement  in  favor  of  an  indi- 

vidual or  class  of  individuals  to  have  a  passage  on 
an  established  line  over  land  of  the  servient  owner 
to  and  from  land  of  the  dominant  owner. 

Rights  of  way  are  created  by  the  rarious  methods  mentioned  in  dis- 
cussing easements  in  general.  They,  however,  frequently  arise  by  im- 
plication, as  where  land  granted  is  represented  as  bounded  or  reach- 
ed by  a  street.^ °  This  is  the  case  where  a  map  showing  such  a 
street  is  referred  to  in  the  deed.'*  Ways  of  necessity  are  also  said 
to  arise  by  implication.**  They  can  exist  only  over  land  of  the 
grantor,  not  over  that  of  a  stranger.**  Though  the  necessity  need 
not  be  absolute,  yet  great  inconvenience  or  expense  will  not  be  suflQ- 
cient.^°     Ways  of  necessity  arise  chiefly  through  grants  of  parcels 

«B  Tobey  v.  Taunton,  119  Mass.  404;  Franklin  Ins.  Co.  v.  Cousens,  127  Mass. 
258;   Crow  v.  Wolbert,  7  Phila.  (Pa.)  178;   Ford  v.  Harris  (Ga.)  22  S.  E.  144. 

«6  Taylor  v.  Hopper,  62  N.  Y.  649;  Regan  v.  Light  Co.,  137  Mass.  37;  Chapin 
V.  Brown,  15  R.  I.  579,  10  Atl.  639. 

«8  Holmes  v.  Seeley,  19  Wend.  (N.  Y.)  507;  Kripp  v.  Curtis,  71  Cal.  62,  11 
Pac.  879;    Pernam  v.  Wead,  2  Mass.  203. 

6  9  Bass  V.  Edwards,  126  Mass.  445;  Kuhlman  v.  Hecht,  77  111.  570;  Taylor 
V.  Warnaiiy,  55  Cal.  350;  Tracy  v.  Asherton,  35  Vt.  52;  Bullard  v.  Harrison, 
4  Maule  &  S.  387. 

70  Nichols  V.  Luce,  24  Pick.  (Mass.)  102;  Oliver  v.  Pitman,  98  Mass.  46; 
Francis'  Appeal,  96  Pa.  St.  200;  Parsons  v.  Johnson,  68  N.  Y.  62;  Pentland 
V.  Keep,  41  Wis.  490;    Field  v.  Mark,  125  Mo.  502,  28  S.  W.  1004. 


360  IXCORPORKAL    HEREDITAMENTS.  (Ch.    13 

of  land  to  which  there  is  no  access.  It  is  held  that  the  grantor  must 
have  intended  to  give  a  right  to  pass  over  his  land  to  enable  the 
granted  estate  to  be  enjoyed.^  ^  Where  such  right  of  way  exists, 
the  owner  of  the  senient  estate  has  the  first  right  to  select  the 
waj,^^  If  he  neglects  to  do  so,  the  owner  of  the  dominant  estate 
may  locate  the  way,  doing  as  little  damage  as  possible.'"  The  rule 
is  the  same  as  to  the  location  of  ways  created  by  express  agree- 
ment if  it  is  not  otherwise  provided  for.^*  After  a  right  of  way 
has  once  been  located,  it  cannot  be  changed  without  the  consent  of 
both  parties."  Ways  of  necessity  may  be  used  for  all  purposes 
necessary  for  the  enjoyment  of  the  dominant  estate;^"  but  other 
ways  can  be  used  only  for  the  purposes  for  which  they  were  created.''^ 
Therefore  one  who  has  the  right  of  way  to  drive  beasts  to  one  lot 

Ti  Nichols  v.  Luce,  24  Pick.  (Mass.)  102;  Holmes  v.  Seely,  19  "Wend.  (N.  Y.) 
507;  Wissler  v.  Ueishey,  23  Pa.  St.  333;  Miller  v.  Richards  (Ind.  Sup.)  38  N. 
E.  854;  Boyd  v.  Woolwine  (W.  Va.)  21  S.  E.  1020;  Clark  v.  Cogge,  Cro.  Jac. 
170;  Parker  v,  Welsted,  2  Sid.  39,  111;  Pinnington  v.  Galland,  9  Exch.  L 
But  sue  Kingsley  v.  Improvement  Co.,  86  Me.  279,  29  Atl.  1074.  Cf.  Worth- 
ington  V.  Gimson,  2  El.  &.  El.  618;  Dodd  v.  Burchell  1  Hurl.  &  C.  113;  Wheel 
don  V.  Burrows,  12  Ch.  Div.  31.  Where  one  conveys  to  a  railroad  company  a 
right  of  way  through  his  land,  so  as  to  cut  off  access  to  a  part  thereof,  he  haa 
a  way  of  necessity  over  the  land  conveyed.  New  York  &  N.  E.  R.  Co.  v. 
Board  of  Railroad  Com'rs,  162  ilass.  81,  38  N.  E.  27.  And  see  Morris  v. 
Edgington,  3  Taunt.  24. 

12  Schmidt  v.  Quinn,  136  Mass.  575;   Russell  v.  Jackson,  2  Pick.  (Mass.)  574. 

T8  Powers  V.  Harlow,  63  Mich.  507,  19  N.  W.  257. 

1*  Hart  V.  Connor,  25  Conn.  331. 

T8  Wyukoop  V.  Burger,  12  Johns.  (N.  Y.)  222;  Smith  v.  Lee,  14  Gray  (Mass.) 
473;  Kraut's  Appeal,  71  Pa.  St  64;  Karmuller  v.  Krotz,  18  Iowa,  352.  When 
rights  of  way  are  acquired  by  prescription,  the  user  must  be  of  some  definite 
track.  Bushey  v.  Santiff,  86  Hun,  384,  33  N.  Y.  Supp.  473;  Gamett  v.  City 
of  Slater,  56  Mo.  App.  207;  Follendore  v.  Thomas,  93  Ga.  300,  20  S.  E.  329. 

7«  Gunson  v.  Healy,  100  Pa.  St.  42.  A  way  of  necessity  ceases  as  soon  as 
there  is  another  way  which  the  dominant  owner  can  use.  Holmes  v.  Goring, 
2  Bing.  76.    But  see  Proctor  v.  Hodgson,  10  Exch.  824. 

7  7  Atwater  v.  Bodfish,  11  Gray  (Mass.)  150;  French  v.  Marstln,  24  N.  H. 
440;  Allan  v.  Gomme,  11  Adol.  &  E.  759;  Wimbledon  and  Putney  Commons 
Conservators  v.  Dixon,  1  Ch.  Dlv.  362;  Henning  v.  Burnet,  8  Exch.  187; 
Corporation  of  London  v.  Riggs,  13  Ch.  Div.  798.  But  see  Newcomen  v. 
Coulsou,  5  Ch.  Dlv.  133;  Cannon  v.  Villurs,  8  Ch.  Div.  415;  Abbott  v.  Butler, 
69  N.  H.  317. 


§    227)  HIGHWAYS.  ^^61 

cannot  drive  beasts,  over  that  way,  to  another  lot  also.^"  Where 
there  is  such  an  excessive  use  of  a  riftht  of  waj',  it  will  gi\e  the 
servient  owner  a  right  of  action,  but  will  not  justify  him  in  closing 
the  way.^"  A  right  of  way  may  include  the  right  to  erect  and  main- 
tain a  bridge.*"  In  the  absence  of  other  arrangement,  the  owner 
of  the  dominant  estate  is  required  to  keep  the  way  in  repair.*^  If 
the  owner  of  the  servient  estate  has  agreed  to  repair,  and  fails  to  do 
so,  those  entitled  to  the  use  of  the  way  may  go  upon  other  land  of 
the  servient  owner,  when  necessary,  to  pass  around  obstructions." 
Rights  of  way  may  be  for  footpath  merely  or  for  carriages,  or  they 
may  be  for  both  foot  and  horse.*'  Easements  of  this  kind  may  be 
created  in  such  form  and  with  such  conditions  as  the  parties  choose 
to  impose,  by  their  express  contracts.** 

SAME— HIGHWAYS. 

227.  Highways  are  rights  of  ■way  in  the  public  in  general. 
They  may  be  either 

(a)  Easements,  or 

(b)  Estates  in  fee  simple. 

With  highways  owned  in  fee  simple  we  have  nothing  to  do  in  this 
connection.     The  ownership  in  such  case  is  in  the  public, — the  state 

'8  Howell  V.  Rex,  1  Mod.  190.  And  see  Skull  v.  Glenister,  16  O.  B,  (N.  S.) 
81;  Davenport  v.  Lampson,  21  Pick.  (Mass.)  72;  French  v.  Marstin,  32  N.  H. 
81G;  Kirkham  v.  Sharp,  1  Whart.  (Pa.)  323;  Lewis  v.  Carstairs,  6  Whart. 
(Pa.)  193.  Cf.  Williams  v.  James,  L.  R.  2  C.  P.  577;  Parks  v.  Bishop,  120 
Mass.  340. 

7  9  Walker  v.  Gerhard,  9  Phila.  (Pa.)  116;  Hayes  v.  DI  Vito,  141  Mass.  233, 
4  N.  E.  828. 

80  See  Schuylkill  Nav.  Co.  v.  Stoever,  2  Grant,  Gas.  (Pa.)  462. 

81  Wynkoop  v.  Burger,  12  Johns.  (N.  Y.)  222;  Taylor  v.  Whitehead,  2  Doug, 
745.     See  Gerrard  v.  Cooke,  2  Bos.  &  P.  N.  R.  109. 

8  2  So  when  the  servient  owner  has  obstioicted.  Farnum  v.  Piatt,  8  Pick. 
(Mass.)  339;  Leonard  v.  Leonard,  2  Allen  (Mass.)  543;  Kent  v.  Judkins.  53 
Me.  160;  Haley  v.  Colcord,  59  N.  H.  7.  But  cf.  Taylor  v.  Whitehead,  2  Doug. 
745;   Williams  v.  Safford,  7  Barb.  (N.  Y.)  309. 

83  Ballard  v.  Dyson,  1  Taunt.  279;  Cowling  v.  Higginson,  4  Mees.  &  W. 
245. 

84  Whether  a  way  has  been  created  or  granted  Is  In  each  case  a  matter  of 
construction.  Espley  v.  Wilkes,  L.  R,  7  Exch.  298;  Kay  v.  Oxley,  L.  R. 
10  Q.  B.  860. 


362  INCORPOREAL    HEREDITAMENTS.  (Ch.    13 

or  the  municipality.*''  It  has  already  been  said  that  hijjhways  are 
not  easements  proper,  because  they  are  held  in  j^oss,  and  not  ap- 
pendant to  any  dominant  estate.*"  When  a  highway  is  only  an 
easement,  the  owners  on  each  side  of  the  road  hold  the  fee  to  the 
middle,  subject  to  the  right  of  the  public  to  pass  over  it.*^  The  ad- 
joining owners,  therefore,  are  entitled  to  the  trees,  minerals,  etc.®' 
Highways  are  usually  acquired  by  dedication,  either  express  *'  or 
implied  by  user  by  the  public.*"  Highways  may  also  be  acquired 
by  the  exercise  of  the  right  of  eminent  domain,  in  which  case  compen- 
sation must  be  made  for  the  land  taken.®^  No  deed  or  other  formal 
act  is  necessary  for  the  dedication  of  a  highway  to  the  public.  The 
dedication  is  complete  when  made  and  accepted  by  the  public,''  and 
use  as  a  highway  may  be  sufficient  to  constitute  an  acceptance.®'  Un- 
til there  is  an  acceptance  by  the  public,  it  does  not  become  bound  to 
keep  the  road  in  repair,  or  liable  for  injuries  caused  by  its  being 
out  of  repair.**  Dedication  of  a  highway  may  be  for  special  pur- 
se Washb.  Easm.  &  Serv.  (4th  Ed.)  252. 

8  8  See  Deerfleld  v.  Railroad  Co.,  144  Mass.  325,  11  N.  E.  105;   Com.  v.  Low,  8 
Pick.  (Mass.)  408;   Nudd  v.  Hobbs,  17  N.  H.  524. 
8T  Adams  v.  Rivers,  11  Barb.  (N.  Y.)  390. 

88  Maliepeace  v.  Wordcn,  1  N.  H.  16;  Tucker  v.  Eldred,  6  R.  I,  404;  Daily  v. 
F>tate,  51  Ohio,  348,  37  N.  E.  710.  And  see  Lade  v.  Shepherd,  2  Strange,  1004; 
Reg.  V.  Pratt,  4  El.  &  Bl.  860;  Perley  v.  Chandler,  6  Mass.  454;  Codman  v. 
Evans,  5  Allen  (Mass.)  308;  State  v.  Davis,  80  N.  C.  351. 

8  9  Com.  V.  Inhabitants  of  Nevs^bmy,  2  Pick.  (Mass.)  51;  Warren  v.  President, 
etc.,  of  Town  of  Jacksonville,  15  111.  236. 

80  James  v.  Sammis,  132  N.  Y.  239,  30  N.  E.  502;  Buchanan  v.  Curtis,  25 
Wis.  99. 

81  And  the  owner  is  entitled  to  further  compensation  for  an  additional  burden, 
such  as  a  railroad,  Williams  v.  Railroad  Co.,  16  N.  Y.  97;  or  street  railway, 
Craig  V.  Railway  Co.,  39  N.  Y.  404;  or  pipes  for  natural  gas,  Bloomfield  &  R, 
N.  Gaslight  Co.  v.  Calkins,  62  N.  Y.  386.  But  otherwise  as  to  sewers  and 
reservoirs,  Stoudlnger  v.  Newark,  28  N.  J.  Eq.  187;  West  v.  Bancroft,  32  Vt 
367;   or  telegraph  lines.  Pierce  v.  Drew,  136  Mass.  75. 

9  2  Bangor  House  Proprietary  v.  Brown,  33  Me.  309,  Repairing  may  not  show 
acceptance.     State  v.  Bradbury,  40  Me.  154. 

93  Buchanan  v.  Curtis,  25  Wis.  99;  Witter  v.  Damitz,  81  Wis.  385,  51  N.  W. 
575;  Brakken  v.  Railroad  Co.,  29  Minn.  41,  11  N.  W.  124;  Rex  v.  Inhabitants  of 
Leake,  5  Bam.  &  Adol.  469. 

»*  Reed  v.  Inhabitants  of  Northfleld,  13  Pick.  (Mass.)  94- 


"^    22S)  LIGHT    AKD    AIR.  363 

poses  only.®"  In  any  case  a  dedication  can  be  made  only  by  the 
owner  of  the  fee,®'  A  dedication  of  streets  to  a  city  is  implied  by 
the  owner  of  land  platting  it  for  city  lots  with  streets  between 
them.®^  For  injuries  to  highways  and  obstructions  of  them  the  right 
of  action  is  in  the  public.  But  if  any  person  is  specially  damaged, 
he  may  have  an  individual  action."* 

SAME— LIGHT  AND  AIR. 

228.  An  easement  of  light  and  air  is  a  right  to  the  unin- 
terrupted flow^  of  light,  and  possibly  air,  to  the  VTin- 
do-ws  of  a  building  over  an  adjoining  lot.  This 
right  can  be  acquired  by  prescription  in  only  a  few 
of  the  United  States. 

At  common  law,  when  one  had  a  building  near  the  boundary  line 
of  his  land,  with  windows  opening  on  the  adjoining  lot,  and  had  en- 
joyed the  access  of  light  over  such  lot  during  the  period  required  by 
the  statute  of  limitations  for  the  acquisition  of  an  easement,  he  was 
held  to  have  a  right  not  to  have  the  light  obstructed.®'  This  right 
would  be  infringed  by  the  erection  of  a  wall  or  building  which  would 
shut  out  the  light  from  the  windows  of  the  building  of  the  dominant 
estate.^°°     The  power  to  acquire  this  easement  by  prescription  has 

»8Ayres  v..  Railroad  Co.,  52  N.  J.  Law,  405,  20  Atl.  54;  Mercer  v.  Wood- 
gate,  L.  R.  5  Q.  B.  2G;    Arnold  v.  Holbrook,  L.  R.  8  Q.  B.  96. 

8  6  Baugan  v.  Mann,  59  111.  492;  Lee  v.  Lake,  14  Mich.  12;  Warren  v.  Brown, 
81  Neb.  8,  47  N.  W.  633. 

87  Taylor  v.  Hopper,  G2  N.  Y.  649;  Chapin  v.  Brown,  15  R.  L  579,  10  Atl.  639. 
Land  may  be  dedicated  for  public  parks  in  the  same  manner  as  for  streets. 
President,  etc.,  of  City  of  Cincinnati  v.  White,  6  Pet.  431.  So  as  to  a  burial 
place.  Beatty  v.  Kurtz,  2  Pet.  5GG;  Hunter  v.  Trustees  of  Sandy  Hill,  6  Hill 
(N.  Y.)  407. 

8  8  Ft.  Plain  Bridge  Co.  v.  Smith,  30  N.  Y.  44;  Rogers  v.  Rogers,  14  Wend.  (N. 
Y.)  131;  State  v.  Parrott,  71  N.  C.  311.  And  see  Bateman  v.  Bluck,  18  Q.  B. 
Div.  870;  McKee  v.  Perchment,  69  Pa.  St.  342.  For  the  right  to  go  on  adjoin- 
ing land  when  a  highway  is  impassable,  see  Absor  v.  French,  2  Show.  28; 
Campbell  v.  Race,  7  Cush.  (Mass.)  408. 

89  Cross  V.  Lewis,  2  Bam.  &  C.  686;  Compton  v.  Richards,  1  Price,  27;  Ren- 
Bhaw  V.  Bean,  18  Q.  B.  112.  Cf.  White  v.  Bass,  7  Hurl.  &  N.  722;  Haynes 
V.  King  [1893]  3  Ch.  439;  Callis  v.  Laugher  [1894]  3  Ch.  659. 

100  Tbe  inconvenience  caused  must  be  appreciable.  Back  v.  Stacey,  2  Car.  it 
P.  465;  W^ells  v.  Ody,  7  Car.  &  P.  410;  Arcedeckne  v.  Kelk,  2  GifC.  683. 


364  INCORPOREAL    HEREDITAMENTS.  (Ch.    13- 

beon  rpoojrnizod  in  only  a  fow  states.^"^  It  may,  however,  be  ac- 
quired by  express  grant,  and  in  some  states  it  is  beld  that  it  may  be 
raised  by  implied  grant,  as  when  there  is  a  conveyance  of  land  with 
buildings  on  it  which  overlook  a  vacant  lot  of  the  grantor.^"*  Where 
the  easement  may  be  acquired  by  prescription,  its  acquisition  may  be 
.prevented  by  the  erection  of  any  stnicture  which  shuts  off  the  light 
before  the  full  period  has  elapsed  which  is  required  by  the  statute 
of  liniitntions.^*"  Wlien  the  right  exists,  the  burden  on  the  servient 
estate  must  not  be  increased  by  the  opening  of  new  windows  or  the 
enlargement  of  old  ones.^"*  If  the  old  building  is  destroyed  or  pulled 
down,  the  easement  can  be  claimed  for  a  new  structure  erected  in  its 
place  only  when  the  windows  are  substantially  the  same  as  be- 
fore.*°*  A  change  in  the  use  of  the  building,  however,  does  not 
destroy  nor  enlarge  the  right.^°«  In  speaking  of  this  easement, 
the  word  "air"  is  usually  added  to  the  word  'Qight,"  though  it  seems 
that  this  is  incorrect,  and  that  the  easement  is  only  for  the  passage 
of  light.^°^  No  easement  in  a  view  or  prospect  can  be  acquired  by 
prescription. ^°^ 

101  Gerber  v.  Grabel,  16  111.  217  (but  contra,  Guest  v.  Reynolds,  68  111.  478); 
Robeson  v.  Pittenger,  2  N.  J.  Eq.  57;  Sutphen  v.  Tiierkelson,  38  N.  J.  Eq.  318; 
Durel  V.  Boisblanc,  1  La.  Ann.  407;  Clawson  v.  Primrose,  4  Del.  Ch.  643.  It 
is  denied  in  the  following:  Parker  v.  Foote,  19  Wend.  (N.  Y.)  309;  Keats  v. 
Hugo,  115  Mass.  204;  Mullen  v.  Strieker,  19  Ohio  St.  135;  Haverstick  v.  Sipe, 
33  Pa.  St.  368.  So,  by  statute,  In  some  states.  1  Stim.  Am.  St.  Law,  §  2254; 
4  Shars.  &  B.  Lead.  Cas.  Real  Prop.  246. 

102  Palmer  v.  Fletcher,  1  Lev.  122;  U.  S.  v,  Appleton,  1  Sumn.  492,  Fed.  Cas. 
No.  14,403;  Sutphen  v.  Therkelson,  38  N.  J.  Eq.  318.  But  see  Maynard  v. 
Esher,  17  Pa.  St.  222;  Doyle  v.  Lord,  64  N.  Y.  432;  Rennyson's  Appeal,  94  Pa. 
St.  147. 

103  Bury  v.  Pope,  Cro.  Eliz.  118.  And  see,  Pearson,  P.  J.,  in  Shell  v,  Kem- 
merer,  13  Phlla.  502.  And  the  easement  may  be  lost  by  abandonment  Moore 
V.  Rawson,  3  Barn.  &  C.  332.  But  cf.  Stokoe  v.  Singers,  8  El.  &  Bl.  31;  Eccle- 
siastical Com'rs  V.  Kino,  14  Ch.  Div.  213. 

104  Blanchard  v.  Bridges,  4  Adol.  &  E.  176. 

106  Cherrington  v.  Abney  Mi!,  2  Vern.  646. 
10  6  aiartln  v.  Goble,  1  Camp.  320. 

107  But  see  American  Bank-Note  Co.  v.  New  York  El.  R.  Co.,  129  N.  Y.  252, 
29  N.  E.  302;  Field  v.  Barling,  149  111.  556,  37  N.  E.  850;  Bamett  v.  Johnson,  15 
N.  J.  Eq.  481.     As  to  windmills,  see  Washb.  Easem.  (4th  Ed.)  669. 

108  Butt  V.  Gas  Co.,  2  Ch.  App.  158.  But  see  Klrkwood  v.  Finegan,  95  Mich. 
64S,  55  N.  W.  457;  Kessler  v.  Letts,  7  Ohio  Cir.  Ct.  R.  108. 


■§§    229-230)  LATERAL   AND    SUBJACENT   SUPPORT.  365 


SAME— LATEEAL  AND  SUBJACENT  SUPPORT. 

229.  The  easement  of  lateral  support  is  the  right  to  have 

one's  ground  supported  so  that  it  will  not  cave  in 
■when  an  adjoining  owner  makes  an  excavation. 
It  exists  only  for  the  land  itself,  and  not  for  erec- 
tions on  the  land. 

230.  The  easement  of  subjacent  support  is  a  similar  right 

bet^veen  the  owners  of  land  w^hich  has  been  par- 
titioned horizontally. 

The  right  to  lateral  support  is,  as  already  said,  a  right  to  have 
land  supported  by  the  adjoining  land.^°^  It  is  a  natural,  rather 
than  a  conventional,  easement.  The  right  exists  only  for  the  land 
itself,  and  not  when  the  burden  has  been  increased  by  greater 
weight  placed  upon  the  land  through  the  erection  of  buildings  or 
other  structures.^ ^"  The  right  to  the  support  of  land  with  the 
buildings  on  it  may,  however,  be  acquired  by  prescription.^ ^^  When 
such  easement  does  not  exist,  the  adjoining  owner  must,  neverthe- 
less, make  excavation  in  a  reasonable  manner,  and  give  notice  to 
the  other  party  of  his  intention  to  excavate,  so  that  the  latter  may 
take  the  necessary  steps  to  prevent  his  buildings  from  falling  in.^^'' 

The  right  to  subjacent  support  is  also  a  natural  right,  but  ex- 
ists only  where  land  has  been  partitioned  horizontally.  This  is 
the  case  when  *:he  surface  belongs  to  one  owner  and  the  right  to  the 
minerals  imbedded  in  the  soil  to  another.     The  latter  must  not  so 

109  Gilmore  v.  DriscoU,  122  Mass.  199;  Tunstall  v.  Christian,  80  Va.  1;  Trans- 
portation Co.  V.  Chicago,  99  U.  S.  635.  Cf.  Corporation  of  Birmingham  v.  Al- 
len, 6  Ch.  Div.  284.  As  to  support  of  a  house  by  a  house,  see  Solomon  v.  Mas- 
ter, etc.,  of  Mystery  of  Vintners,  4  Hurl.  &  N.  585;  Richards  v.  Rose,  9  Exch. 
218. 

no  Thurston  t.  Hancock,  12  Mass.  220;  Gilmore  v.  DriscoU,  122  Mass.  199; 
Panton  v.  Holland,  17  Johns.  (N.  Y.)  92;  Smith  v.  Thackerah,  L.  R,  1  O.  P.  564. 
But  see  Brown  v.  Robins,  4  Hurl.  &  N.  186. 

111  Hunt  V.  Peake,  Johns.  Eng.  Ch.  705;  Partridge  v.  Scott,  3  Mees.  &  W.  220. 

112  Lasala  v.  Halbrook,  4  Paige  (N.  Y.)  169;  Moody  v.  McClelland,  39  Ala.  45; 
Austin  V.  Railroad  Co.,  25  N,  Y.  334;  Shafer  v.  Wilson,  44  Md.  268;  Dodd  v. 
Holme,  1  Adol.  &  E.  493;  Chadwick  v.  Trower,  6  Bing.  N.  C  1. 


36G  INCOKPOKEAL    HEREDITAMENTS.  (Ch.    13 

operate  his  mine  as  to  cause  the  surface  to  fall  in.^^'  The  person 
working  the  mines,  however,  is  not  required  to  furnish  support  for 
buildinf]:s  which  have  been  placed  upon  the  land  after  the  severance 
of  the  ownership  of  the  mines  and  the  surface,  unless  such  increased 
easement  has  been  acquired  by  lapse  of  time.  But,  even  when  build- 
inp:s  have  been  thus  placed  upon  the  surface,  there  would  be  a 
liability  for  negligent  excavations.^^* 

Horizontal  Ownership  of  Buildings. 

The  same  principles  apply  to  the  horizontal  ownership  of  build- 
ings. The  owner  of  the  upper  stories  of  a  hou-se  has  a  right  to  sup- 
port from  the  ow^ner  of  the  lower  portion,  and  an  easement  in  the 
use  of  the  halls  and  stairs.^^'  The  owner  of  the  lower  floors  has 
an  easement  of  protection  by  the  roof.^^*  The  two  owners  must 
so  use  their  property  as  not  to  injure  each  other.  But  the  law  as 
to  their  rights  is  still  very  unsettled.  Some  cases  hold  that  the 
upper  owTier  must  keep  the  roof  in  repair;  ^^^  others  say  that  if  he 
fails  to  do  so  the  lower  owner  may  enter  to  make  the  necessary 
repairs;  while  still  other  cases  tend  towards  the  French  rule,  which 
holds  that  the  expenses  are  to  be  borne  equally.^  ^® 

SAME— PARTY  WALLS. 

231.  Party  ■vsralls   are    "walls   used  to    support    contignous 
structures  •which  belong  to  different  proprietors. 

A  party  wall  d^es  not  necessarily  have  any  connection  with  ease- 
ments, for  it  may  "(1)  belong  to  the  adjoining  proprietors  as  ten- 
ants in  common;^"    (2)  it  may  be  divided  longitudinally  into  two 

118  Jones  V.  Wagner,  66  Pa.  St.  429;  Humphries  v.  Brogden,  12  Q.  B.  Div.  739. 

11*  Marvin  v.  Mining  Co.,  55  N.  Y.  538;  Bonomi  v.  Backhouse,  El.,  Bl.  &  El. 
622;  Rowbotham  v.  Wilson,  8  H.  L.  Cas.  348. 

116  Mayo  V.  Newhoff,  47  N.  J.  Eq.  31,  19  Atl.  837;  Rhodes  v.  McCormack,  4 
Iowa,  3<)S;  Humphries  v.  Brogden,  12  Q.  B.  Div.  739;  Harris  v.  Ryding,  5  Mees. 
&  W.  60. 

116  Wright,  C.  J.,  in  Rhodes  v.  McCormack,  4  Iowa,  368,  376. 

iiT  Loring  v.  Bacon,  4  Mass.  575;  Ottumwa  Lodge,  etc.,  v.  Lewis,  34  Iowa,  67; 
Cheeseborough  v.  Green,  10  Conn.  318;   Keilw.  98b,  pi.  4;  Anon.,  11  Mod.  7. 

118  Pierce  v.  Dyer,  109  Mass.  374;  Loring  v.  Bacon,  4  Mass.  575. 

119  Cubitt  V.  Porter,  8  Bam.  &.  C.  257;    Watson  v.  Gray,  14  Ch.  Div.  192. 


§231)  PARTY    ^VALLS.  367 

strips,  each  strip  belonging  to  the  adjoining  owner  in  severalty;  ^-° 
(3)  it  may  belong  wholly  to  one  proprietor,  subject  to  a  right  held 
by  the  other  to  have  it  maintained  as  a  party  wall;  (4)  it  may  be 
divided  longitudinally  into  two  moieties,  each  moiety  subject  to  a 
cross  easement,  a  right  of  support  in  favor  of  the  other."  ^-^  Party 
walls  are,  however,  usually  built  one-half  on  the  land  of  each  pro- 
prietor. If  a  wall  is  so  built  by  one  party,  the  other  need  not  pay 
one-half  its  cost  without  an  express  agreement.^ -^  It  is  usual  for 
one  of  the  adjoining  proprietors  to  build  the  wall  and  the  other  to 
pay  his  half  when  he  has  occasion  to  use  the  wall.  In  some  states, 
by  statute,  one  owner  is  permitted  to  build  one-half  of  a  wall  on 
the  land  of  an  adjoining  proprietor,  whether  the  latter  consents  or 
not.^^^  Such  a  statute  has  been  held  unconstitutional  in  Massa- 
chusetts.^^* An  agreement  to  pay  for  one-half  of  a  party  wall 
when  used  does  not  bind  assignees  unless  recorded,  or  there  is  no- 
tice.^^°  When  walls  are  constructed  one-half  on  the  land  of  each, 
each  owner  has  an  easement  in  the  land  of  the  other  for  the  sup- 
port of  the  wall.^^®  But  this  easement  in  the  other's  land  is  lost 
by  the  destruction  of  the  wall."^  When  the  wall  becomes  ruinous, 
either  may  repair  and  compel  contribution  by  the  other;  ^^^    but 

120  Matts  V.  Hawkins,  5  Taunt.  20.  Where  one  intending  to  construct  a  wall 
within  the  line  of  his  lot  by  mistalie  extends  his  foundation  slightly  onto  an  ad- 
joining lot,  the  wall  does  not  thereby  become  a  party  wall.  Pile  v.  Peilrick, 
167  Pa.  St.  296,  31  Atl.  646,  647. 

121  Thomp.  Fixt.  &  Easem.  93;  Burton  v.  Moffitt,  8  Or.  29. 

122  Walker  v.  Stetson,  162  Mass.  86,  38  N.  E.  18;  Wilkins  v.  Jewett,  139 
Mass.  29.  29  N.  E.  214;  McCord  v.  Herrick,  IS  III.  App.  423;  Preiss  v.  Parker, 
67  Ala.  500. 

123  1  stim.  Am.  St.  Law,  §  2170. 

12*  Wilkins  v.  Jewett,  139  Mass.  29,  29  N.  E.  214. 

12  B  Sebald  v.  MulhoUand,  11  Misc.  Rep.  714,  31  N.  Y.  Supp.'  863;  Sherred  v. 
Cisco,  4  Sandf.  (N.  Y.)  480;  Joy  v.  Bank,  115  Mass.  60;  Cole  v.  Hughes,  54  N. 
Y.  444;  Conduitt  v.  Ross,  102  Ind.  166,  26  N.  E.  198.  Cf.  Frohman  v.  Dickin- 
son, 11  Misc.  Rep.  9,  31  N.  Y.  Supp.  851.  But  cf.  Savage  v.  Mason,  3  Cush. 
^Mass.)  500;  Maine  v.  Cumston,  98  Mass.  317;  Standish  v.  Lawrence,  111  Mass. 
111. 

126  Brooks  v,  Curtis,  50  N.  Y.  639;  Ingals  v.  Plamondon,  75  111.  118;  Andrae 
r.  Haseltine,  58  Wis.  395,  17  N.  W.  18. 

127  Partridge  v.  Gilbert,  15  N.  Y.  601;  Sherred  v.  Cisco,  4  Sandf.  (N.  Y.)  480; 
Hoffman  v.  Kuhn,  57  Miss.  746. 

12  8  Campbell  v.  Mesier,  4  Johns.  Ch.  (N.  Y.)  334,  Cf.,  however,  Pierce  v. 
Dyer,  109  Mass.  374. 


368  INCORPOREAL    HEREDITAMKNTS.  (Ch.   13 

if  the  wall  has  been  destroyed  there  is  no  right  to  compel  the  other 
party  to  stand  half  of  the  expense  of  rebuilding.^"  Each  owner, 
in  using  the  wall,  must  do  nothing  to  weaken  it  or  otherwise  to  in- 
jure the  adjoining  proprietor.^"" 

Partition  Fences. 

Partition  fences  are  in  many  respects  like  party  walls.  They 
are  usually  eracted  one-half  on  the  land  of  each,  and  the  obligation 
to  repair  is  the  same  as  in  the  case  of  party  walls.^'^  The  duty  to 
maintain  such  fences  may  exist  by  reason  of  a  statute,^^^  or  it  may 
arise  from  agreement  or  prescription.^""  Such  fences  are  usually 
divided  into  halves,  each  owner  being  required  to  maintain  his  half. 

SAME— EASEMENTS  IN  WATER. 

232.  The  o"wner  of  land  fronting  on  a  natural  "water 
course  has  the  right  to  have  it  maintained  in  its 
natural  condition;  that  is,  the  water  must  not  be 
prevented  from  coming  to  him  or  from  flo"wing 
away,  or  be  polluted. 

Water,  as  a  subject  of  ownership,  was  discussed  somewhat  in 
our  first  chapter.  Rights  in  water  depend  largely  on  whether  the 
water  is  naturally  on  the  land  or  has  been  brought  there  by  artifi- 
cial means.^"*  Eights  in  water  in  its  natural  state  consist  almost 
entirely  in  a  right  to  use  it  as  contrasted  with  ownership  of  it 
When  there  is  a  defined  water  course,  one  who  owns  the  land  over 
which  it  flows,  or  who  owns  land  on  one  bank  of  the  stream,  has  a 

128  Sherred  v.  Cisco,  4  Sandf.  (N.  Y.)  480;  Partridge  v.  Gilbert,  15  N.  Y.  601. 

130  Dowling  V.  Hemings,  20  Md.  179;  Brodbee  v.  Mayor,  etc.,  of  London,  4 
Man.  &  G.  714. 

181 1  Stim.  Am.  St  Law,  §  2185.  One  may  be  bound  to  repair  the  whole  by 
prescription,  Blnney  v.  Proprietors,  5  Pick.  (^lass.)  503;  Anon.,  Y.  B.  19 
Hen.  VL  p.  83,  pi.  68;  Star  v.  Rookesby,  1  Salk.  335;  Lawrence  v.  Jenkins,  L. 
R.  8  Q.  B.  274;  or  by  contract,  Bronson  v.  Coffin,  108  Mass.  175,  reversed  as 
to  measure  of  damages,  118  Mass.  15G. 

132  1  stim.  Am.  St.  Law,  art  218. 

133  Cowles  V.  Balzer,  47  Barb.  (N.  Y.)  502. 

IS*  See  ante,  p.  4;   Earl  v,  De  Hart,  12  N.  J.  Eq.  280. 


§    232)  EASEMENTS    IN    WATER.  369 

right  to  hare  the  flow  continae  without  unreasonable  interference 
by  the  riparian  owners,  either  above  or  below  him.*"'  In  order 
that  there  may  be  such  a  water  course,  a  continuous  flow  is  not  nec- 
essary. It  is  sufficient  if  water  flows  in  the  channels  at  certain  sea- 
sons of  the  year.*"  A  riparian  owner  *'^  has  a  right  to  use  the 
water  in  a  reasonable  way,  but  he  must  not  divert  it  from  its  course,* 
or  detain  it  more  than  a  reasonable  time.*"®  So  he  has  no  right 
to  corrupt  the  water  which  flows  over  his  land,  unless  such  right  is 
acquired  by  prescription  or  otherwise.*'^  Furthermore,  he  must 
not  dam  up  the  water,  and  cause  it  to  flow  back  on  the  lands  of  the 
owners  above,**"  though,  of  course,  an  easement  of  this  kind  may 

1S6  Darlington  v.  Painter,  7  Pa.  St.  473;  Prescott  v.  White,  21  Picli.  (Mass.) 
841;  Omelvany  v.  Jaggers,  2  Hill  (S.  C.)  634;  Tyler  v.  Wilkinson,  4  Mason, 
S97,  Fed.  Cas.  No.  14,312;  Embrey  v.  Owen,  6  Exch.  353;  Williams  v.  Mor- 
land,  2  Barn.  &  C.  910;  Miner  v.  Gilmour,  12  Moore,  P.  O.  131;  Wood  v. 
Waud,  3  Exch.  748;  Earl  of  Sandwich  v.  Railway  Co.,  10  Ch.  Div.  707; 
Sampson  v.  Hoddinott,  1  C.  B.  (N.  S.)  590. 

126  Shields  v.  Arndt,  4  N.  J.  Eq.  234;  Eulrich  v.  Richter,  41  Wis.  318;  New 
York,  C.  &  St.  L.  R.  Co.  v.  Speelman,  12  Ind.  App.  372,  40  N.  E.  541;  Rigney 
r.  Water  Co.,  9  Wash.  576,  38  Pac.  147. 

187  As  to  easements  in  persons  not  riparian  owners,  see  Stockport  Water- 
works Co.  V.  Potter,  3  Hurl.  &  C.  300,  Ormerod  v.  Mill  Co.,  11  Q.  B.  Div.  155; 
Nuttall  V.  Braccwell,  L.  R.  2  Exch.  1;  Bristol  Hydraulic  Co.  v.  P.oyer.  67 
Ind.  230. 

*  Hogg  V.  Water  Co.,  168  Pa.  St.  456,  31  Atl.  1010;  Green  Bay  &  M.  Caual 
Co.  V.  Kaukauna  Water  Power  Co.,  90  Wis.  370,  Gl  N.  AV.  1121,  and  63  N.  W. 
1019;  Southern  Marble  Co.  v.  Darnell,  94  Ga.  231,  21  S.  E.  531;  Vernon  Irri- 
gation Co.  V.  City  of  Los  Angeles,  106  Cal.  237,  39  Pac.  762.  But  a  stream 
may  be  diverted  if  it  is  returned  to  the  established  channels  before  passing 
off  the  land  of  the  one  diverting  it.  Missouri  Pac.  Ry.  Co.  v.  Keys,  55  Kan. 
205,  40  Pac.  275. 

188  Pitts  V.  Lancaster  Mills,  13  Mete.  (Mass.)  156;  Elliot  v.  Railway  Co.,  10 
Cush.  (Mass.)  191;  Garwood  v.  Railroad  Co.,  83  N.  Y.  400;  Snow  v.  Parsons, 
28  Vt.  459;  Canfield  v.  Andrew,  54  Vt.  1;  Gillis  v.  Chase  (N.  H.)  31  Atl.  IS; 
Blodgett  V.  Stone,  60  N.  H.  167;  Vernon  Irrigation  Co.  v.  City  of  Los  Angeles, 
106  Cal.  237,  39  Pac.  762.  Cf.  Wheatley  v.  Chrisman,  24  Pa.  St  298.  As  to 
custom  to  show  reasonable  use,  see  Canfield  v.  Andrew,  54  Vt  L 

189  Jackman  v.  Arlington  Mills,  137  Mass.  277;  Smith  v.  Cranford,  84  Hun, 
818,  32  N.  Y.  Supp.  375;  Lewis  v.  Stein,  16  Ala.  214;  Hayes  v.  Waldron,  44 
N.  H.  580;    People  v.  Elk  River  Mill  &  Lumber  Co.,  107  Cal.  214,  40  Pac.  486. 

140  McCoy  V.  Danley,  20  Pa.  St.  85;  Sprague  v.  Worcester,  13  Gray  (Mass.) 
193;    Railroad  Co.  v.  Carr,  38  Ohio  St  448. 

REAL  PROP.— 24 


370  IKCORPOREAL    HEREDITAMENTS.  (Ch.    13 

be  acquired,**^  and  in  some  states  a  mill  owner  may  exercise  the 
power  of  eminent  domain  in  order  to  acquire  such  right^*'  Rights 
to  change  the  natural  uses  of  water  are  easements,  and  must  be  ac- 
quired in  the  same  ways  as  other  conventional  easements.'*^  In 
some  states,  the  one  first  appropriating  a  stream  of  water  especially 
for  use  in  irrigation  obtains  the  first  right  to  the  water  ^**  to  the  ex- 
tent of  his  appropriation.**'  The  rights  of  owners  whose  lands 
border  on  navigable  streams  are  the  same,  so  far  as  the  law  of  ease- 
ments is  concerned,  as  the  rights  of  other  riparian  owners ;  but  they 
must  not  obstruct  navigation.**'  Where  rivers  are  used  by  boom 
companies  for  the  transportation  of  logs,  the  rule  is  that  the  first 
in  has  the  first  right  to  the  use  of  the  current;  but  they  must  not 
cause  unnecessary  obstruction.**' 

141  But  long  user  will  not  give  a  right  to  prevent  the  erection  of  a  mill 
above.    Thurber  v.  Martin,  2  Gray  (Mass.)  894. 

1*2  Washb.  Easem.  (4th  Ed.)  445. 

1*3  Russell  V.  Scott,  9  Cow.  (N.  Y.)  279;  Postlethwalte  v.  Payne,  8  Ind.  104; 
Smith  V.  Russ,  17  Wis.  234.    Cf.  Shury  v.  Piggot,  8  Bulst.  839. 

1**  Smith  V.  O'Hara,  43  Cal.  371;  Schilling  v.  Rommger,  4  CJolo.  100;  Barnes 
V.  Sabron,  10  Nev.  217;  Wimer  v.  Simmons  (Or.)  39  Pac.  6.  Such  appropria- 
tion on  public  lands  is  authorized  by  congress.  Rev.  St.  U.  S.  §§  2339,  2340. 
The  right  may  be  lost  by  abandonment.  Vemon  Irrigation  Co.  v.  City  of 
Los  Angeles,  106  Cal.  237,  39  Pac.  762;  Beaver  Brook  Reservoir  &  Canal 
Co.  V.  St.  Vraln  Reservoir  &  Fish  Co.  (Colo.  App.)  40  Pac.  1066.  See,  also, 
Sampson  v.  Hoddinott,  1  C.  B.  (N.  S.)  590;   Embrey  v.  Owen,  6  Exch.  353. 

1*5  Creek  v.  Waterworks  Co.,  15  Mont.  121,  38  Pac.  459. 

1*8  Ensmlnger  v.  People,  47  111.  384;  Gifford  v.  McArthur,  55  Mich.  535, 
22  N.  W.  28;  Bainbridge  v.  Sherlock,  29  Ind.  864;  Fulmer  v.  Williams,  122 
Pa.  St.  191,  15  Atl.  726;  Field  v.  Driving  Co.,  67  Wis.  569,  31  N.  W.  17.  And 
see  Original  Hartlepool  Collieries  Co.  v.  Gibb,  5  Ch.  Div.  713.  The  public  are 
not  entitled  to  a  tow  path  along  a  navigable  river.    Ball  v.  Herbert,  8  Term 

R.  253.    Contra,  Reg.  v.  Inhabitants  of  Cluworth,  6  Mod.  163;    Young  v.  , 

1  Ld.  Raym.  725. 

i*T  Butterfield  v.  Gilchrist,  53  Mich.  22,  18  N:  W.  542;  Sullivan  v.  Jemlgan, 
21  Fla.  264.  Cf.  Brown  v.  Chadbourne,  31  Me.  9;  Gwaltney  v.  Land  Co.,  115 
N.  C.  579,  20  S.  E.  465.  As  to  what  streams  are  "floatable,"  see  Commis- 
sioners of  Burke  Co.  v.  Catawba  Lumber  Co.,  116  N.  C.  731,  21  S.  E.  941. 


§   232)  EASEMENTS    IN   WATER.  371 

Subterranean  Waters. 

Underground  waters,  when  not  flowing  in  a  defined  course/**  but 
existing  merely  as  percolations,  may  be  diverted,^*'  although  by  so 
doing  the  wells  of  adjoining  landowners  may  be  injured, ^'^''  Upon 
the  same  principle,  in  working  a  mine,  subterranean  waters  may  be 
drawn  off  from  the  surrounding  land  without  incurring  liability.^ ''^ 
But  underground  percolations  must  not  be  fouled  by  the  introduc- 
tion of  foreign  substances. ^"^  No  easements  can  be  acquired  by 
prescription  in  subterranean  waters,  because  the  user  necessary  to 
acquire  such  rights  would  be  unknown,  and  therefore  not  adverse.^'* 

Surface  Waters. 

Surface  waters  are  such  as  do  not  flow  in  a  regular  channel.*"* 
The  cases  are  conflicting  as  to  the  duty  of  a  lower  owner  to  receive 
such  waters  onto  his  land,*""  but  it  certainly  does  not  exist  in  the 

1*8  See  Grand  Junction  Canal  Co.  v.  Shugar,  6  Ch.  App.  483.  Dudden  v. 
Guardians  of  Poor  of  the  Glutton  Union,  1  Hurl.  &  N.  627;  West  Cumberland 
Iron  &  Steel  Co.  v.  Kenyon,  6  Ch.  Div.  773;  Burroughs  v.  Saterlee,  67  Iowa,  396, 
25  N.  W.  808. 

i<9  Chatfield  v.  Wilson,  28  Vt.  49;  Phelps  v.  Nowlen,  72  N.  Y.  39.  But  see 
Pixley  V.  Clark,  So  N.  Y.  520.  Under  Rev.  St.  U.  S.  §  2339.  Rights  in  per- 
colating waters  may  be  acquired  by  prior  appropriation.  Sullivan  v.  Mining 
Co.  (Utah)  40  Pac.  709. 

100  Bloodgood  V.  Ayres,  108  N.  Y.  400,  15  N.  E.  433;  Chasemore  v.  Richards, 
7  H.  L.  Gas.  349;  and  ante,  p.  5.  But  see  Chesley  v.  King,  74  Me.  164; 
Hollingsworth  &  Vose  Co.  v.  Foxborough  Water-Supply  Dist  (Mass.)  42  N. 
E.  574. 

151  Acton  V.  Blundell,  12  Mees.  &  W.  324;  Popplewell  v.  Hodliinson,  L.  R. 
4  Exch.  248.  The  use  must  not  be  malicious  or  extravagant.  Willis  v.  City 
of  Perry  (Iowa)  60  N.  W.  727.    Cf.  Horner  v.  Watson,  79  Pa.  St.  242. 

182  Ball  V.  Nye,  99  Mass.  582;  Wahle  v.  Reinbach,  76  111.  322;  Pottstowu 
Gas  Co.  v.  Murphy,  39  Pa.  St.  257.  But  see  Upjohn  v.  Board,  46  Mich. 
542,  9  N.  W.  845. 

158  Lybe's  Appeal,  106  Pa.  St  626;  Haldeman  v.  Bruckhart,  45  Pa.  St. 
514.  Cf.  Davis  v.  Spaulding,  157  Mass.  431,  32  N.  E.  650;  Acton  v.  Blundell. 
12  Mees.  &  W.  324.  But  see  Smith  v.  Adams,  6  Paige  (N.  Y.)  435;  Balston  v. 
Bensted,  1  Camp.  463. 

i64Gibbs  V.  Williams,  25  Kan.  214;  Eulrich  v.  Richter,  37  Wis.  226,  41 
Wis.  318;  Hebron  Gravel  Road  Co.  v.  Harvey,  90  Ind.  192;  Earl  v.  De  Hart, 
12  N.  J.  Eq.  280;  Bowlsby  v.  Speer,  31  N.  J.  Law,  351. 

155  That  he  must  receive  surface  water,  see  Adams  v.  Walker,  34  Conn.  466. 
Contra,  Gannon  v.  Hargadon,  10  Allen  (Mass.)  106;  Barkley  v.  Wilcox,  86 


872  INCORPOREAL    HEREDITAMENTS.  (Ch.   13 

case  of  city  property.^"'  Surface  waters  must  not  be  collected 
by  one  proprietor  and  discharged  upon  the  land  of  his  neighbor  in 
any  increased  quantity  in  one  place/ "^  unless  the  discharge  be  into 
a  regular  water  course.*"'  Surface  water  may  be  appropriated,  and 
prevented  from  reaching  the  natural  water  courses,  without  incur- 
ring liability.* ''" 

Eaves'  Drip. 

The  right  to  have  water  fall  from  the  roof  of  one's  building  onto 
the  land  of  another  is  an  easement,  and  is  call  2d  the  right  of  "eaves' 
drip."  *°°     This  right  may  be  acquired  by  prescription.*'* 

Artificial  Water  Courses. 

As  already  stated,  rights  in  water  which  has  been  brought  upon 
land  by  artificial  means  differ  in  many  respects  from  the  rights 
which  we  have  been  discussing.*'^  For  instance,  an  artificial  wa- 
ter course  cannot  be  established  without  the  consent  of  the  lower 
proprietor.*''  But  when  such  a  water  course  has  been  established, 
no  right  is  acquired  to  have  it  continued,*'*  though  it  must  not  be 

N.  T.  140;  Lessard  v.  Stram,  62  Wis.  112,  22  N.  W.  2S4;  Abbott  v.  Railway 
Co.,  83  Mo.  271;   Hill  v.  Railroad  Ck).,  109  Ind.  511,  10  N.  E.  410. 

106  Farlis  V.  Newburyport,  10  Gray  (Mass.)  28;  Barliley  v.  Wilcox,  8G  N.  Y. 
140. 

16T  Noonan  v.  Albany,  79  N.  Y.  470;  Curtis  v.  Railroad  Co.,  98  Mass.  428; 
Hogenson  v.  Railway  Co.,  31  Minn.  224,  17  N.  W.  374;  Hurdman  v.  Railway 
Co.,  3  C.  P.  Div.  1G8.  Wben  by  the  operation  of  pumps  more  water  Is  dis- 
charged upon  the  land  of  a  lower  proprietor  than  would  flow  there  naturally,  the 
upper  proprietor  Is  liable  for  any  damage  which  he  could  have  prevented  at  a 
reasonable  cost     Pfeiffer  v.  Brown,  165  Pa.  St.  267,  30  AtL  844. 

XB8  MeCormlck  v.  Horan,  81  N.  Y.  86;  Waffle  v.  Railroad  Co.,  53  N.  Y.  11; 
Peck  V.  Herrington,  109  111.  611;  Jackman  v.  Arlington  Mills,  137  Mass.  277. 

iBDBowlsby  V.  Speer,  31  N.  J.  Law,  351;  Broadbent  v.  Ramsbotham,  11 
Exch.  602. 

160  Neale  v.  Seeley,  47  Barb.  (N.  Y.)  314.  Cf.  Billows  v.  Sackett,  15  Barb. 
(N.  Y.)  96;   Harvey  v.  Walters,  L.  R.  8  C.  P.  162. 

161  Neale  v.  Seeley,  47  Barb.  (N.  Y.)  314. 

162  Ante,  p.  368. 

16  8  Norton  v.  Volentine,  14  Vt.  239. 

164  Norton  v.  Volentine,  14  Vt  239;  Wood  v.  Waud,  8  Exch.  748;  Greatrex 
V.  Hay  ward,  8  Exch.  291;  Arkwright  v.  Gell,  5  Mees.  &  W.  203;  Brymbo  Water 
Co.  V.  Lesters  Lime  Co.,  8  Reports,  329.  But  such  a  right  may  be  acquired  by 
prescription.     Cole  v.  Bradbury,  86  Me.  380,  29  Atl.  1097. 


§    233)  PROFITS    A    PRENDRE.  373 

maliciously  fouled  by  the  one  establishing  it.*"  The  right  to  lay 
water  pipes  across  another's  land  is  an  easement/^"  and  carries 
with  it  the  right  to  enter  on  such  land  to  repair  the  pipes.^" 

PROFITS  A  PRENDRE. 

233.  A  profit  a  prendre  is  a  right  exercised  by  one  man 
in  the  land  of  another,  accompanied  by  a  partici- 
pation in  the  profits  of  that  land. 

Profits  h  prendre  have  already  been  distinguished  from  ease- 
ments as  being  a  right  to  take  a  profit  out  of  another  man's  land.^®* 
These  rights  may  be  as  various  as  the  nature  of  the  soil  and  the 
things  which  grow  thereon  or  are  imbedded  in  it  will  permit.^*® 
For  instance,  there  may  be  a  right  to  mine  for  metals  or  for  coal, 
a  right  to  take  wood  or  turf,  or  any  other  product  of  the  land."° 
Profits  k  prendre  have  to  do  with  our  system  of  law  chiefly  as 
rights  of  common.  These  rights  of  common  were  privileges  which 
the  lord  of  an  English  manor  granted  to  his  tenants  to  take  certain 
profits  from  his  waste  land.  The  principal  rights  of  common  were 
(1)  common  of  pasture,  (2)  common  of  turbary,  (3)  common  of  esto- 
vers, (4)  common  of  piscary.  The  first,  or  common  of  pasture,  whs- 
a  right  in  the  tenants  to  turn  their  cattle  out  to  graze  on  the  lord's* 
waste.  The  number  of  cattle  which  each  tenant  had  a  right  to  de- 
pasture was  strictly  regulated  by  the  local  customs.^^*  Commons 
of  pasture  are  either  appurtenant  or  appendant.^"     The  latter  ex- 

16  6  Magor  V.  Chadwick,  11  Adol.  &  E.  571. 

16C  Goodrich  v.  Burbank,  12  Allen  (Mass.)  459;  BIssell  v.  Grant,  35  Conn.  288. 
Cf.  Amidon  v.  Harris,  113  Mass.  59. 

167  See  Goodrich  v.  Burbank,  12  Allen  (Mass.)  459.  So  to  enter  and  clean  a 
railway  for  a  mill.     Prescott  v.  White,  21  Pick.  (Mass.)  341. 

i«8  Ante,  p.  350.  See,  also.  Race  v.  Ward,  4  El.  &  BI.  702;  Wlckham  v. 
Hawker,  7  Mees.  &  W.  63. 

169  A  right  to  take  water  from  a  spring  is  not  a  profit  a  prendre.  Hace  v. 
Ward,  4  El.  &  Bl.  702. 

170  Waters  v.  Lilley,  4  Pick.  (Mass.)  145;  Tinicima  Fishing  Co.  v.  Carter,  61 
Pa.  St.  21;  Hill  v.  Lord,  48  Me.  83. 

171  Whitelock  v.  Hutchinson,  2  Moody  &  R.  205;  Carr  v.  Lambert,  L.  R.  1 
Exch.  168. 

17  2  2  Bl.  Comm.  33. 


374  INCORPOREAL    HEREDITAMENTS,  (Ch.   13 

1st  only  In  connection  with  arable  land,*^'  and  give  a  right  to 
pasture  no  other  beasts  than  those  of  the  plow;  that  is,  those  beast? 
which  are  necessary  to  the  cultivation  of  the  land  to  which  the 
common  is  appendant.  Commons  of  pasture  appendant  do  not  ex- 
ist in  the  United  States.  Commons  of  pasture  appurtenant  may 
exist  in  connection  with  any  kind  of  land,  and  give  a  right  to  pasture 
other  beasts  than  those  of  the  plow.^'^*  Common  of  turbary  is  the 
right  to  take  turf  or  peat  for  fuel  to  bum  in  the  tenant's  house. 
The  same  term  would  apply  to  the  right  to  take  coal.^'''  Common 
of  estovers  corresponded  to  the  right  of  estovers,  which  has  already 
been  defined,"'  and  the  kinds  are  the  same.  Common  of  piscary 
is  a  right  to  fish  in  the  lord's  waters.*'^''  It  has  been  seen  that  the 
owner  of  land  has  the  exclusive  right  to  fish  in  waters  thereon,  ex- 
cept in  the  case  of  navigable  rivers.^^*  Such  an  owner  must  not, 
however,  obstruct  the  passage  of  fish  up  and  down.^^*  The  right 
to  fish  in  another  man's  waters  may  be  created  by  express  grant 
or  acquired  by  prescription.^*"  The  right  to  take  fish  is  now  ver\ 
largely  regulated  by  statute  in  the  various  states.  With  rights  of 
common,  or  any  other  profits  k  prendre,  there  is  no  obligation  to 
maintain  a  supply  of  the  things  to  which  the  right  exist.-^^  Com- 
mons are  the  same  as  easements  in  their  method  of  creation  ^**  and 

i73  Anon.,  Y.  B.  26  Hen.  VIII.,  p.  4.  pi.  15. 

174  Cowlam  V.  Slack,  15  East,  108;  Commissioners  of  Sewers  v.  Glasse,  L.  R. 
19  Eq.  134;   Baylls  v.  Tyssen-Amhurst,  6  Ch.  DIv.  500. 

17  6  2  Bl.  Comm.  34.  See  Wilkinson  v.  Proud,  11  Mees.  &  W.  33;  Caldwell  v. 
Fulton,  31  Pa.  St.  475;  Massot  v.  Moses,  3  S.  C.  168. 

»7  6  Ante,  p.  81. 

1T7  2  El.  Comm.  34. 

17  8  Ante,  p.  5. 

17  9  Parker  v.  People,  111  111.  581;  Boatwrlght  v.  Bookman,  1  Rice  (S.  C.)  447. 
And  see  Case  v.  Weber,  2  Cart.  (Ind.)  108. 

isoTreary  v.  Cooke,  14  Mass.  488;  Melvin  v.  Whiting,  7  Pick.  (Mass.)  79; 
Smith  V.  Kemp,  2  Salk.  637;  Benett  v.  Costar,  8  Taunt.  183;  Seymour  y.  Courte- 
nay,  5  Burrows,  2814. 

181  See  Rivers  v.  Adams,  3  Exch.  Div.  361;  Chilton  v.  Corporation  of  Lon- 
don, 7  Ch.  Div.  735. 

i82Tottel  V.  Howell,  Noy,  54;  Duke  of  Somerset  v.  Fogwell,  5  Barn.  &  C. 
875;  Bailey  v.  Stephens,  12  C.  B.  (N.  S.)  91;  Pitt  v.  Chick,  Hut.  45;  Huntington 
V.  Asher,  96  N.  Y.  604.  Common  appendant  can  be  acquired  only  by  prescrip- 
tion. 2  Bl.  Comm.  33.  And  see  Smith  v.  Floyd,  18  Barb.  (N.  Y.)  522;  Smith 
T.  Gatewood,  Cro.  Jac.  152. 


§§  234-235)  RENTS.  375 

destruction.*"  They  are  subject  to  merger,***  and  cvJmmon  ap- 
purtenant is  extinguished  by  an  alienation  of  a  part  of  tlie  land  to 
which  the  right  is  attached.**"  They  descend  with  the  land,  but 
cannot  be  devised  separate  from  the  land.**'  Rights  of  common 
are  rare  in  the  United  States,  but  a  number  of  cases  have  come  be- 
fore the  courts,  in  which  these  rights  have  been  considered.  For 
any  more  than  this  brief  outline  of  rights  of  common  the  reader  is 
referred  to  those  cases  which  will  be  found  in  the  notes.* *^  Profits 
k  prendre  other  than  rights  of  common  are  merely  matters  of  con- 
tract rights  between  the  owner  of  the  land  and  the  grantee  of  the 
profit.***  They  are  closely  allied  to  licenses,  which  have  already 
been  considered.*** 

RENTS. 

234.  Rent  is  a  profit  issuing   out  of  land,  which  is  to  be 

rendered  or  paid  periodically  by  the  tenant.     Rents 
are  of  the  foUo^ng  kinds: 

(a)  Rent  service. 

(b)  Rent  charge. 

(c)  Rent  seek. 

235.  Rents  charge  and  seek  are  called  "fee  farm  rents." 

183  Van  Rensselaer  y.  Radcliflf,  10  Wend.  (N.  Y.)  639.  See  Drury  v.  Kent, 
Cro.  Jac.  14. 

18*  Bradshaw  v.  Eyre,  Cro.  Eliz.  570;  Saundeys  v.  Oliff,  Moore,  467. 

18B  Tyrringham's  Case,  4  Coke,  36b;  Van  Rensselaer  v.  Radcllff,  10  Wend. 
(N.  Y.)  639;  Watts  v.  Coffin,  11  Johns,  (N.  Y.)  495;  Leyman  v.  Abeel,  16  Johns. 
(N.  Y.)  30;  Livingston  v.  Ketcham,  1  Barb.  (N.  Y.)  592;  Livingston  v.  Ten 
Broeck,  16  Johns.  (N.  Y.)  14;  Bell  v.  Railroad  Co.,  25  Pa.  St,  161.  But  see  Hall 
V.  Lawrence,  2  R.  L  218. 

186  Livingston  v.  Ketcham,  1  Barb.  (N.  Y.)  592,  But  see  Welcome  v.  Upton, 
6  Mees.  &  W.  536;  Leyman  v.  Abeel,  16  Johns.  (N,  Y.)  30,  As  to  apportion- 
ment of  commons,  see  Van  Rensselaer  v.  Radcliff,  10  Wend,  (N.  Y.)  639;  Liv- 
ingston v.  Ten  Broeck,  16  Johns.  (N.  Y.)  14, 

187  Van  Rensselaer  v.  Radcliff,  10  Wend,  (N.  Y.)  639;  Livingston  v.  Ten 
Broeck,  16  Johns,  (N,  Y,)  14;  Leyman  v.  Abeel,  Id.  30;  Smith  v,  Floyd,  18 
Barb,  (N.  Y.)  522;  Livingston  v,  Ketcham,  1  Barb,  (N,  Y,)  592;  Inhabitants  of 

188  Anon.,  Dyer,  285,  pi,  40,  See  Wilson  v.  Mackreth,  3  Burrows,  1824;  Oox 
V.  Glue,  5  C,  B,  533. 

189  Ante,  p.  165. 


376  INCORPOREAL  HEREDITAMENTS.  (Ch.  13 

Rents  have  already  been  considered  in  treating  of  landlord  and 
tenant,"^  but  they  will  here  be  discussed  as  incorporeal  heredita- 
ments. As  such  they  are  rights  to  receive  money  out  of  the  profits 
of  land.  Estates  may  be  created  in  rents,  and  for  such  purpose  the 
same  words  of  limitation  are  to  be  used  as  in  creating  estates  in 
corporeal  property.^^^  Estates  so  created  are  good  only  to  the  ex- 
tent of  the  grantor's  interest  in  the  rent  or  in  the  land  out  of  which 
the  rent  issues.  Estates  in  rent  are  subject  to  dower  and  curtesy, 
like  corresponding  corporeal  estates;  ^^^  and  when  the  estate  in 
the  rent  is  one  of  inheritance  it  descends  to  the  heirs."*  The 
classes  of  rents  have  been  named  in  the  black  letter.  Rent  service 
was  the  only  kind  of  rent  originally  known  to  the  common  law. 
It  was  accompanied  by  tenure  and  was  given  as  a  compensation  for 
the  services  for  which  the  land  originally  was  liable.  Distress  was 
always  an  incident  of  rent  service.^^"*  The  statute  of  quia  emptores, 
by  abolishing  subinfeudation,  prevented  the  creation  of  a  rent 
service  in  fee;  ^**  but  such  rents  may  exist  in  those  states  in  which 
the  statute  of  quia  emptores  has  not  been  adopted,"^  and  they  may 
exist  in  all  states  when  the  rent  is  less  than  a  fee  simple."*  A 
rent  seek  is  one  which  is  created  by  agreement  of  the  parties,  but 
no  relation  of  tenure  exists,  and  there  was  no  right  of  distress  at 
common  law  for  the  recovery  of  the  rent,"*  though  the  right  was 
given  by  the  statute  of  4  George  II.  c.  28,  §  5.      Rent  charge  is  the 

Worcester  v.  Green,  2  Pick.  (Mass.)  425;  Bell  v.  Railroad  Co.,  25  Pa.  St.  161; 
Trustees  of  Western  University  v.  Robinson,  12  Serg.  &  R.  29;  Carr  v.  Wallace, 
7  Watts  (Pa.)  394;  Hall  v.  Lawrence,  2  R,  I.  218;  Peck  v.  Lock  wood,  5  Day 
(Conn.)  22. 

191  Ante,  p.  134. 

182  Van  Rensselaer  v.  Hays,  19  N.  Y.  68;  Van  Rensselaer  v.  Read,  26  N.  Y. 
558. 

188  2  Washb.  Real  Prop.  (5th  Ed.)  288;  ante,  p.  87. 

18*  See  Sacheverel  v.  Frogate,  1  Vent  161.  But  it  may  be  a  chattel  only, 
as  when  reserved  on  a  lease  for  years.     Knolles'  Case,  Dyer,  5b. 

i9»  Kenege  v.  Elliot,  9  Watts  (Pa.)  258. 

i8«  Van  Rensselaer  v.  Read,  26  N.  Y.  563;  Van  Rensselaer  y.  Hays,  19  N. 
Y.  68. 

i»T  Wallace  v.  Harmstad,  44  Pa.  St.  492;  Ingersoll  v.  Serg^nt,  1  Whart  (Pa.) 
837.    See  ante,  p.  30. 

i»«2  Washb.  Real  Prop.  (5th  Ed.)  286. 

10  9  2  Bl.  Comm.  42;    Cornell  v.  Lamb,  2  Cow.  (N.  Y.)  652. 


§§  234-235)  RENTS.  877 

same  thing  as  rent  seek,  except  that  a  right  of  distress  is  given  by 
the  original  agreement  of  the  parties.*""  These  two  forms  of  rent 
are  called  collectively  "fee  farm  rents,"  and  differ  only  in  the  mattcf 
of  the  right  of  distress.  Fee  farm  rents  seldom  occur  in  the  United 
States.  Thev  may  be  used  for  the  same  purpose  as  a  mortgage. 
Fee  farm  rents  are  often  used  in  England  to  raise  portions  for  heirs 
and  jointures  for  married  women. ^°^  Rents  may  be  created  either 
by  deed  ^"^  or  by  prescription. ^^^  When  created  by  deed,  it  may 
be  by  a  grant  of  a  rent  to  a  person  to  whom  no  estate  in  the  land  is 
conveyed,  or  by  a  reservation  of  a  rent  out  of  land  granted.-"* 
Rents  may  be  created  by  any  form  of  conveyance  which  is  sufficient 
to  transfer  other  incorporeal  hereditaments,  and  also  they  may  be 
granted  in  trust,  or  conveyed  by  way  of  uses.  After  a  rent  has 
been  created,  it  may  be  transferred  like  any  other  estate.^ °'  The 
rules  governing  assignments  of  rent  of  the  land  out  of  which  they 
issue,  and  of  the  reversion,  if  there  be  one,  have  already  been  con- 
sidered.^"' Although  the  rule  was  otherwise  at  common  law,  the 
owner  of  a  rent  may  now  divide  it  up,  or  it  may  descend  to  several 
heirs.^"^  When  the  owner  of  a  rent  service  purchases  part  of  the 
land  out  of  which  the  rent  issues,  or  releases  a  part  of  the  rent  to 
the  owner  of  that  land,  the  rent  is  apportioned  pro  rata.^"^  With  a 
rent  charge,  however,  it  is  otherwise,  and  the  same  acts  would  cause 
an  extinguishment  of  the  rent,  because  no  apportionment  is  possi- 
ble except  by  a  new  agreement  of  the  parties.'""     It  is  otherwise, 

soo  Van  Rensselaer  v.  Read,  26  N.  Y.  558;  Hosford  v.  Ballard,  39  N.  Y.  147; 
Van  Rensselaer  v.  Hays,  19  N.  Y.  68.  But  cf.  Turner  v.  Lee,  Cro.  Car.  471. 
And  see  contra,  Hool  v.  Bell,  1  Ld.  Raym.  172. 

201  And  see  Scott  v.  Lunt,  7  Pet.  596;  Foltz  v.  Huntley,  7  Wend.  (N.  Y.)  210; 
Adams  v.  Bucklin,  7  Pick.  (Mass.)  121;  Williams's  Appeal,  47  Pa.  St  283. 

20  2  ingersoll  v.  Sergeant,  1  Whart.  (Pa.)  337;  Taylor  v.  Vale,  Cro.  Eliz.  166. 
Cf.  Williams  v.  Hayward,  1  EL  &  El.  1040. 

20  3  Wallace  v.  Presbyterian  Church,  111  Pa.  St  164,  2  Atl.  347. 

«04  Scott  V.  Lunt  7  Pet  596;    Folts  v.  Huntley,  7  Wend.  (N.  Y.)  210. 

205  Van  Rensselaer  v.  Read,  26  N.  Y.  558;  Van  Rensselaer  v.  Hays,  19  N.  Y. 
68.     Cf.  Trulojk  v.  Donahue,  76  Iowa,  758,  40  N.  W.  696. 

208  Ante,  p.  147. 

207  Cook  V.  BrighUy,  46  Pa,  St.  439;  Farley  v.  Craig,  11  N.  J.  Law,  262.  But 
see  Ryerson  v.  Quackenbush,  26  N.  J.  Law,  236. 

208  Co.  Litt  §  222;  Ingersoll  v.  Sergeant,  1  Whart.  (Pa.)  337. 

20  9  Dennett  v.  Pass,  1  Bing.  N.  C.  388.  But  see  Farley  v.  Craig,  11  N.  J. 
Law,  262. 


S78  INCORPOREAL   HEREDITAMENTS.  (Ch.  13 

however,  when  part  of  the  land  has  come  to  the  owner  of  the  land 
by  descent,  instead  of  by  his  own  act.^'"  An  eviction  of  the  tenant 
from  the  land  out  of  which  the  rent  is  reserved  will  extinguish  the 
rent,  but,  if  the  eviction  is  from  part  of  the  land  only,  the  rent  will 
be  apportioned.  But  if  the  eviction  is  by  the  owner  of  the  rent, 
though  it  be  from  only  part  of  the  land,  the  rent  is  extinguished.^^* 
Apportionment  of  rent  as  to  time  has  been  considered  in  another 
place."'  The  doctrine  of  merger  applies  to  rents."'  Distress,  as 
a  remedy  for  rent,  we  have  already  considered,"*  as  well  as  cov- 
enants for  the  payment  of  rent,""  and  conditions  of  re-entry  for  its 
nonpayment."'  The  remedy  by  which  rent  may  be  recovered  by 
action  is  governed  by  the  form  of  instrument  creating  the  rent. 
Thus,  if  the  rent  is  created  by  indenture,  covenant  is  the  proper 
form  of  action;"^  while,  If  the  creation  was  by  a  deed  poll,  as- 
sumpsit would  be  the  remedy.'"  Debt  for  rent  lies  in  nearly  all 
cases.'" 

FRANCHISES. 

236.  **A  franchise  is  a  privilege  or  immmiity  of  a  public 
nature,  which  cannot  be  legally  exercised  without 
legislative  grant."  At  common  law,  franchises  are 
hereditaments. 

«io  Cruger  v.  McLaury,  41  N.  T.  219,  223. 

«ii  2  Washb.  Real  Prop.  (5th  Ed.)  289l 

«i2  Ante,  p.  60. 

813  Cook  V.  Brightly,  46  Pa,  St  439. 

ai*  Ante,  p.  145. 

215  Ante,  p.  140. 

«i«  Ante,  p.  150. 

217  Finley  v.  Simpson,  22  N.  J.  Law,  811.  And  see  Tharsby  r.  Plant,  1  Ley. 
259;  Stevenson  v.  Lambard,  2  East,  575.  But  cf.  Mlhies  v.  Branch,  5  Maule  & 
S.  411. 

218  Goodwin  v.  Gilbert,  9  Mass.  510;  Johnson  v.  Muzzy,  45  Vt.  419;  Hinsdale 
V.  Humphrey,  15  Conn.  431.  And  cf.  Falhera  t.  Corbret,  2  Barnard,  386; 
Johnson  v.  May,  3  Lev.  150. 

219  FareweU  v.  Diclienson,  6  Barn.  &  C.  251;  Reade  v.  Johnson,  Cro.  Eliz. 
242;  Newcomb  v.  Harvey,  Garth.  161;  Stroud  v.  Rogers,  6  Term.  R.  63,  note; 
Case  of  Loringe's  Ex'rs,  Y.  B.  26  Edw.  III.,  p.  10,  pi.  5;  Gibson  v.  Kirk,  1 
Q.  B.  850;  Thomas  v.  Sylvester,  L.  R.  8  Q.  B.  368.  But  see  Marsh  v.  Brace, 
Cro.  Jac.  334;  Bord  v.  Cudmore,  Cro.  Car.  183;  Pine  v.  Leicester,  Hob.  87; 
Humble  v.  Glover,  Cro.  Eliz.  328;   Webb  v.  Jiggs,  4  Maule  &  S.  113. 


§    236)  FRANCHISES.  379 

At  common  law,  franchises  are  heritable;  but  now  they  are  usu- 
ally held  by  corporations,  and  corporations  can  have  no  heirs.  So, 
too,  franchises  are  now  usually  granted  for  a  term  of  years,  and 
not  in  fee.^^"  The  law  of  franchises  now  pertains  more  properly 
to  the  law  of  corporations,  and  we  will  give  only  a  brief  account  of 
some  of  the  common-law  rules.  A  franchise  need  not  necessarily  be 
a  monopoly,  but  may  be  nonexclusive.  Franchises  are  alienable, 
and  are  liable  for  the  debts  of  their  owners.^*^  A  franchise  is  in 
the  nature  of  a  contract,  being,  on  the  one  hand,  a  grant  by  the 
state  or  a  municipality  of  certain  rights  and  privileges  which  could 
not  be  otherwise  exercised,  in  consideration  for  certain  benefits  to 
the  public,  to  be  supplied  by  the  grantee.  A  failure  of  the  grantees 
to  carry  out  the  purposes  for  which  the  franchise  was  granted  gives 
cause  for  forfeiture  of  the  franchise.  But  forfeiture  is  had  only  at 
the  suit  of  the  government'*^  Where  an  exclusive  franchise  has 
been  granted,  it  assumes  the  character  of  a  contract  which  is  pro- 
tected by  the  constitutional  provisions  against  impairing  the  obliga- 
tion of  the  contract,  and  therefore  no  conflicting  franchises  can  be 
granted.^ ^^  An  exclusive  franchise,  however,  like  other  property, 
may  be  taken  under  the  right  of  eminent  domain.*'*  One  of  the 
most  usual  franchises  at  common  law  was  the  right  to  maintain 
and  operate  a  ferry.'"  A  right  of  this  kind  is  personal  property  in 
Iowa.'"     A  riparian  owner  has  no  right  to  set  up  a  ferry  on  a  nav- 

220  Stark  v.  M'Gowen,  1  Nott  &  McC.  (S.  C.)  887;  Clark  v.  White,  5  Bush. 
(Ky.)  353;    Conway  v.  Taylor,  1  Black,  G03. 

2  21  2  Washb.  Real  Prop.  (5th  Ed.)  310;  Greer  v.  Haugabook,  47  Ga.  282. 
But  see  Foster  v.  Fowler,  60  Pa.  St.  27;  Yellow  River  Imp.  Co.  v.  Wood  Co., 
81  Wis.  554,  51  N.  W.  1004. 

22  2  Chicago  City  Ry.  Co.  v.  People,  73  111.  541;  Jeffersonville  v.  The  John 
Shallcross,  35  Ind.  19;   Greer  v.  Haugabook,  47  Ga,  282. 

22  3  Milhan  v.  Shai-p,  27  N.  Y.  611;  Newburgh  &  C.  Turnpike  Road  Co.  v. 
Miller,  5  Johns.  Ch.  (N.  Y.)  101;  Boston  &  L.  R.  Corp.  v.  Salem  &  L.  R.  Co., 
2  Gray  (Mass.)  1;  McRoberts  v.  Washburne,  10  Minn.  23  (Gil.  8).  But  see 
Hopkins  v.  RaUroad  Co.,  2  Q.  E.  Div.  224;  Ft  Plain  Bridge  Co.  t.  Smith,  30 
N.  Y.  44. 

224  West  River  Bridge  Co.  v.  Dix,  6  How.  507;  In  re  Towanda  Bridge  Co.,  91 
Pa.  St.  216. 

225  Ipswich  V.  Browne,  Sav.  11;  Peter  v.  Kendal,  6  Barn.  &  C.  703,  711; 
Mabury  v.  Ferry  Co.,  9  O.  C.  A.  174,  60  Fed.  645. 

«a9  Lippencott  v.  Allander,  27  Iowa,  460. 


380  INCORPOREAL    HEREDITAMENTS.  (Ch.    13 

iffable  river  without  authority  from  the  state.'"  When  a  franchise 
for  a  ferry  has  been  accepted  by  the  grantees,  they  are  bound  to 
provide  accommodation  for  the  public,  and  are  liable  for  injuries 
caused  by  defect  in  their  boats  and  other  appliances.  On  the  other 
hand,  they  become  entitled  to  take  toll."^  If  an  exclusive  fran- 
chise has  been  granted  for  maintaining  a  ferry,  it  includes  the  right 
to  enjoy  it,  free  from  interference  by  contiguous  and  injurious  com- 
petition.-'* If  another  ferry  was  established  so  near  as  to  produce 
such  effect,  it  would  constitute  a  nuisance.'^"  Franchises  for 
bridges  and  turnpike  roads  are  subject  to  the  same  rules  as  thnoA 
for  ferries.  "^ 

227  Mills  V.  Learn,  2  Or.  215;  Prosser  v.  Wapello  Co.,  18  Iowa.  827.  But  see 
Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178;  Cooper  v.  Smith,  9  Serg.  &  R. 
(Pa.)  26. 

228  Ferrel  v.  Woodward,  20  Wis.  458;  Willoughby  v.  Horrldge,  12  C.  B.  742. 
22  9  Huzzey  v.  Field,  2  Cromp.,  M.  &  R.  432;  Long  v.  Beard,  3  Murphy  (N.  C.) 

57;  Aikin  v.  Railway  Corp.,  20  N.  Y.  370.  So  building  a  bridge  may  interfere 
with  a  ferry.  Gates  v.  M'Daniel,  2  Stew.  (Ala.)  211;  Smith  v.  Haskins,  3  Ired. 
Eq.  (N.  C.)  613.  Cf.  Newton  v.  Cubitt,  12  0.  B.  (M.  S.)  32,  affirmed  13  C.  B.  (N. 
S.)  864. 

230  Midland  Terminal  &  Ferry  Co.  v.  Wilson,  28  N.  J.  Eq.  537;  Collins  v.  Sw- 
ing, 51  Ala.  101;  Walker  v.  Armstrong,  2  Kan.  198. 

231  Ft.  Plain  Bridge  Co.  v.  Smith,  80  N.  Y.  44;  President,  etc.,  of  Newburgh 
&  Cochecton  Turnpike  Road  v.  Miller,  5  Johns.  Ch.  (N.  Y.)  101;  Norrls  v.  Team- 
sters' Co.,  6  CaL  690;  Proprietors  of  Charles  Elver  Bridge  t.  Proprietors  of 
Warren  Bridge,  11  Pet.  420. 


§    237)  LEGAL   CAPACITY    TO    HOLD   AND   CONVBY    REALTY.  381 

CHAPTER  XIV. 

LEGAL  CAPACITY  TO  HOLD  AND  CONVEY  REALTY. 


237. 

Personal  Capacity. 

238. 

Infants. 

239-240. 

Persons  of  Unsound  Mind. 

241-242, 

Married  Women. 

243-244. 

Aliens. 

245. 

Corporations. 

PERSONAL  CAPACITT. 

237.  Personal  capacity  to  convey  real  estate  is,  in  gen- 
eral, the  same  as  capacity  to  contract.  The  power 
to  take  and  hold  real  estate  is  greater  in  some  in- 
stances than  the  po-wer  to  convey  it. 

Personal  capacity  in  connection  with  power  to  take,  hold,  and 
convey  real  estate  has  already  been  mentioned  in  connection  with 
the  various  subjects  of  which  we  have  treated.  In  the  main,  how- 
ever, the  topics  which  have  already  been  considered  have  been  treat- 
ed of  only  in  connection  with  normal  persons.  Power  to  convey  real 
property  is,  in  general,  the  same  as  the  power  to  make  contracts.^ 
Disabilities  connected  with  personal  capacity  are  of  two  kinds, — 
natural,  such  as  that  of  insanity,  and  legal,  as  in  case  of  married 
women  and  corporations.  Some  disabilities,  such  as  infancy,  may 
be  both  natural  and  legal.  The  degree  of  disability  varies  in  each 
case.  It  has  already  been  said  that  some  persons  have  power  to 
hold  land,  but  cannot  convey  it.  For  instance,  persons  under  disa- 
bility may  take  land  by  descent,  though  by  reason  of  insanity  or  some 
other  cause  they  might  have  no  power  to  make  a  binding  contract  to 
sell  it.  Certain  disabilities  which  arise  from  the  relation  of  mort- 
gagor and  mortgagee,  trustee  and  cestui  que  trust,  have  been  treated 
<yf  heretofore." 

1  See  Clark,  Cont  21L  »  Ante,  pp.  182,  263. 


382  LEGAL   CAPACITY    TO    HOLD    AND   CONVEY    REALTY.  (Ch.   14 


INFANTS. 

238.  An  infant's  conveyances  of  his  real  property  arie 
voidable,  not  void.  They  may  be  ratified  or  disaf- 
firmed by  him  after  he  reaches  majority. 

At  common  law  all  persons  were  infants  who  had  not  reached  the 
age  of  21  years,  but  this  has  been  changed  in  many  states,  and 
females  reach  their  majority  at  18  or  at  marriage.'  An  infant,  of 
course,  has  power  to  take  real  estate  either  by  descent  or  by 
conveyance  to  him.*  His  transfers  of  his  real  property  are  not  void, 
but  only  voidable,"  and  the  privilege  of  avoiding  them  is  personal 
with  him,  and  cannot  be  taken  advantage  of  by  a  stranger,*  although 
it  may  be  by  his  representatives  after  his  death.''  An  infant  who 
has  made  a  conveyance  of  his  real  property  has  no  power  to  disaffirm 
the  conveyance  during  his  infancy;  nor,  of  course,  would  a  ratifica- 
tion by  him  during  that  time  be  of  any  validity.*  In  the  event  of 
the  infant's  death  before  reaching  majority,  his  heirs  may  affirm  or 
disaffirm  the  conveyance  without  waiting  until  the  time  has  elapsed 
which  would  have  made  him  of  age  had  he  lived  Ratification  or 
disaffirmance  by  one  who  has  reached  majority,  of  a  conveyance 
made  during  infancy,  need  not  be  by  express  acts,  but  may  be  by  im- 
plication. Thus  a  conveyance  of  the  property  to  another  person  is  a 
disaffirmance  of  a  deed  made  during  minority.'  A  ratification  need 
not  be  by  deed.^"  The  cases  are  conflicting  as  to  whether  acqui- 
escence after  reaching  majority  is  an  affirmance.     The  best  rule 

» 1  Stlm.  Am.  St.  Law,  §  6G01. 

*  1  Devi.  Deeds,  §  116. 

6  Kendall  v.  Lawrence,  22  Pick,  (5ilass.)  540;  Jenkins  v.  Jenkins,  12  Iowa, 
19o;  Shipley  v.  Bunn,  125  Mo.  445,  28  S.  W.  754;  Tucker  v.  Moreland,  10  Pet.  58. 
As  to  the  appointment  of  an  attorney  in  fact  by  an  infant,  see  1  Jones,  Real 
Prop.  §  4, 

6  Brown  v.  Caldwell,  10  Serg.  &  R.  (Pa.)  114. 

T  Veal  V.  Fortson,  57  Tex.  482;    Bozeman  v.  Browning,  31  Ark.  364. 

8  See  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119. 

8  Jackson  v.  Cai-penter,  11  Johns.  (N.  Y.)  539;  Chapin  v.  Shafer,  49  N.  T. 
407;    Cresinger  v.  Welch,  15  Ohio,  156. 

10  Barnaby  v.  Barnaby,  1  Pick.  (Mass.)  221;  Phillips  v.  Green,  5  T.  B.  Mon. 
(Ky.)  344;    Robbins  v.  Eaton,  10  N.  H.  561, 


§§  239-240)  PERSONS  of  unsound  mind.  383 

seems  to  be  that  an  infant  shall  have  a  reasonable  time  after  coming 
of  age  in  which  to  affirm  or  disaffirm.^ ^  A  second  deed  executed  dur- 
ing minority  is  no  disafiSrmance  of  a  prior  one."  Bringing  suit  for 
the  land  conveyed  during  infancy  is,  of  course,  a  disaffirmance  of  such 
conveyance.  On  disaffirming  a  conveyance,  there  must  be  a  restora- 
tion of  the  consideration  received  for  the  land,  if  the  money  is  still  in 
the  grantor's  hands."  The  lands  of  an  infant  may  be  conveyed  by 
his  guardian  by  order  of  court.^* 

PERSONS  OP  UNSOUND  MIND. 

239.  Conveyances    by    insane    persons    -wlio    are    tmder 

guardiansliip  are  void,  but,  if  not  under  guardian- 
ship, tbeir  conveyances  are  voidable  only. 

240.  The  same   rules  govern  conveyances  by  intoxicated 

persons  and  habitual  drunkards. 

The  disabilities  of  persons  of  nonsane  mind  to  convey  their  real 
property  are  much  the  same  as  disabilities  of  infants.  Their  inca- 
pacity is  a  question  of  fact  in  each  case.  The  test  which  is  generally 
applied  is  the  grantor's  capacity  to  comprehend  the  business  w^hich 
he  is  transacting."  Nonsoundness  of  mind  may  arise  from  age, 
sickness,  accident,  or  other  cause,  but  the  legal  consequences  are  the 
same  in  each  case.     Mere  weakness  of  mind  does  not  incapacitate  a 

11  Jones  V.  Butler,  30  Barb.  (N.  Y.)  641;  Goodnow  v.  Lumber  Co.,  31  Minn. 
4G8,  18  N.  W.  2S3.  So  by  statute  In  some  states.  1  Stim.  Am.  St.  Law,  § 
6602;  Wright  v.  Germain,  21  Iowa,  585;  Green  v.  Wilding,  59  Iowa,  679,  13 
N.  W.  761.  Contra,  Tucker  v.  Moreland,  10  Pet.  58;  Irvine  v.  Irrine,  9 
Wall.  617;    Prout  v.  Wiley,  28  Mich.  164;  Huth  v.  Docli  Co.,  56  Mo.  202. 

12  Bool  V.  Mix,  17  Wend.  (N.  Y.)  119;  McCormic  v.  Leggett,  8  Jones  (N.  C.) 
425. 

IS  Brandon  v.  Bi'own,  106  111.  519.  Where  the  consideration  received  has 
been  wasted  by  the  infant,  no  offer  to  restore  it  Is  necessary.  Chandler  v. 
Simmonds,  97  Mass.  508;  Green  v.  Green,  7  Hun  (N.  Y.)  492.  But  contra. 
Stout  V.  Merrill,  35  Iowa,  47;  Kerr  v.  Bell,  44  Mo.  120. 

1*  Battell  V.  Torrey,  65  N.  Y.  294;  Wood  v.  Truas,  39  Mich.  628.  Cf.  Mer- 
ritt  V.  Simpson,  41  111.  391. 

iBOdell  V.  Buck,  21  Wend.  (N.  Y.)  142;  Titcomb  v.  Vantyle,  84  111.  871; 
Corbit  V.  Smith,  7  Iowa,  60. 


384  LEGAL   CAPACITY   TO    HOLD    AND    CONVEY    REALTY.  (Ch.   14 

person  to  convey  his  property.^'  But  when  such  weakness  of 
mind  is  shown,  less  proof  of  duress  or  fraud  is  required  to  have  hia 
conveyance  set  aside."  If  the  person  is  so  insane  that  he  has  been 
placed  under  guardianship,  any  conveyances  made  by  him  are  abso- 
lutely void,  and  not  merely  voidable;  ^*  otherwise  they  are  voidable 
only,"  but  in  some  states  the  courts  hold  that  conveyances  by  insane 
persons,  though  not  under  guardianship,  are  void.^"  When  the  un- 
soundness of  mind  is  only  in  the  form  of  a  monomania,  power  to 
transact  business  is  affected  only  in  case  the  transaction  in  question 
is  connected  with  the  subject  on  which  the  person  is  insane.*^  In- 
sanity arising  after  a  valid  contract  of  sale  or  purchase  has  been 
made  does  not  affect  the  validity  of  the  contract."  On  the  other 
hand,  conveyances  made  during  the  insanity  of  the  grantor  may  be 
ratified  by  him  after  he  has  recovered."  The  voidable  conveyance 
of  an  insane  person  may  be  set  aside  at  the  suggestion  of  his  guardian 
during  his  life  or  after  his  death  on  the  application  of  his  heirs  or 
personal  representatives."  The  cases  are  conflicting  as  to  the 
necessity  for  the  restoration  of  the  purchase  money  when  deeds  of 

18  Alman  v.  Stout,  42  Pa.  St.  114;  Tcaylor  v.  Cox,  153  111.  220,  38  N.  E.  656; 
Miller  v.  Craig,  36  111.  109;  Odell  v.  Buck,  21  Wend.  (N.  Y.)  142;  In  re  Pike'3 
Will,  83  Hun,  327,  31  N.  Y.  Supp.  689. 

17  Allore  V.  Jewell,  94  U.  S.  506;  Harding  v.  Handy,  11  Wheat.  103. 

18  Corbit  V.  Smith,  7  Iowa,  60;  Mohr  v.  Tulip,  40  Wis.  66;  Rogers  v.  Walker, 
6  Pa.  St.  371.  A.  deed  of  his  homestead  is  void  though  his  wife  joins.  New 
England  Loan  &  Trust  Co.  v.  Spitler,  54  Kan.  560,  38  Pac.  799. 

19  Bunham  ▼.  Kidwell,  113  111.  425;  Allis  v.  Billings,  6  Mete.  (Mass.)  415; 
Breckenridge  t.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  236. 

20  Evans  ▼.  Horan,  52  Md.  602;  Van  Deusen  v.  Sweet,  51  N.  Y.  378;  Farley 
V.  Parker,  6  Or.  105;  German  Sav.  &  Loan  Soc.  v.  De  Lashmutt,  67  Fed.  399. 
See,  as  to  the  theory  of  lucid  intervals,  Whart  &  S.  Med.  Jur.  §§  61,  62;  2 
Hamilton,  Leg.  Med.  113,  222. 

21  Trich's  Ex'r  v.  Trich,  165  Pa.  St.  586,  30  Atl.  1053;  Ekin  v.  McCracken, 
11  Phila.  (Pa.)  534;  Turner  v.  Rusk,  53  Md.  65;  Farmer  v.  Farmer,  129  Mo. 
530,  31  S.  W.  926;  Blough  v.  Parry  (Ind.  Sup.)  40  N.  E.  70;  McClary  v.  Stull, 
44  Neb.  175,  62  N.  W.  501. 

22  Ekin  V.  McCracken,  11  Phila.  (Pa.)  534. 

23  Arnold  v.  Iron  Works,  1  Gray  (Mass.)  434;  Eaton  v.  Eaton,  87  N.  J.  Law, 
108. 

2*  Campbell  v.  Kuhn,  45  Mich.  513,  8  N.  W.  523;  Arnold  v.  Townsend,  14 
Phila.  (Pa.)  216.  But  see  Key's  Lessee  v.  Davis,  1  Md.  32.  The  wife  and 
•children  of  the  grantor  cannot,  during  his  lifetime,  question  his  mental  capacity 


§§   241-242)  MARRIED   WOMEN.  385 

insane  persons  are  set  aside.  But  It  seems  that  there  should  be  a 
restoration  when  the  grantee  was  ignorant  of  his  grantor's  inca- 
pacity, or  when  there  was  no  fraud  present.*"  As  in  the  case  of 
infants,  the  lands  of  insane  persons  may  be  conveyed  by  order  of 
court. 

Drunkards. 

The  disability  of  persons  who  are  incapacitated  to  deal  with  their 
real  property  by  reason  of  intoxication  is  much  the  same  as  that  of 
insane  persons.  In  fact,  the  rules  to  be  applied  are  those  which 
determine  the  soundness  of  the  understanding  of  the  person.  Un- 
soundness of  mind  may  as  well  result  from  intoxication  as  from  in- 
sanity, and,  indeed,  in  many  cases  habitual  drunkenness  leads  to 
insanity.  Conveyances  by  such  persons  are  voidable,"  though  it 
might  be  that  in  states  where  a  drunkard  may  be  placed  under  guard- 
ianship deeds  made  by  him  after  that  time  would  be  void." 

MARRIED  WOMEN. 

241.  At  commoii  la-w  a   married  -woman  could  not  take 

land  "Without  her  husband's  consent,  and  her  con- 
veyances, except  of  her  separate  property,  -were 
absolutely  void. 

242.  These  disabilities  have  been   more   or  less  removed 

in  all  states  by  statute. 

Under  the  disabilities  of  which  we  have  heretofore  treated  there 
has  been  no  loss  of  power  to  take  lands,  the  disabilities  being 
merely  as  to  conveyances.  But  at  common  law  a  husband  could 
disafiBrm  a  conveyance  made  to  his  wife.**  If  the  husband  did  con- 
to  convey  land,  Baldwin  v.  Golde,  88  Hun,  115,  84  N,  Y.  Supp.  587;  nor  can 
a  remainder-man,  McMillan  v.  William  Deering  &  Co.,  139  Ind.  70,  38  N.  E.  398. 

2B  Davis  Sewlng-Mach,  Co.  v.  Barnard,  43  Mich.  379,  5  N.  W.  411;  Scanlan  v. 
Cobb,  85  111.  296;  Rusk  v.  Fenton,  14  Bush  (Ky.)  490.  Contra,  Gibson  v.  Sopher, 
6  Gray  (Mass.)  279;  Crawford  v.  Scovllle,  94  Pa.  St  48;  Flanders  v.  Davis, 
19  N.  H.  139. 

2«  Mansfield  v.  Watson,  2  Iowa,  111;  Wilson  v.  Bigger,  7  Watts  &  S.  (Pa.) 
Ill;  Wiley  v.  Ewalt,  66  111.  26;  Warnock  v.  CampbeU,  25  N.  J.  Eq.  485- 

ST  See  Clark,  Cont.  275. 

a«  Baxter  v.  Smith  6  Bin.  (Pa.)  427. 

BEAL  PROP. — 25 


886        LEGAL  CAPACITY  TO  HOLD  AND  CONVEY  REALTY.     (Ch.  14 

Bent  to  such  a  conveyance,  the  wife  did  not  have  power  to  avoid 
the  conveyance.**  On  the  other  hand,  a  married  woman's  deeds, 
at  common  law,  were  absolutely  void.'"  The  statute  of  3  &  4 
Wm.  rv.  c.  75,  gave  a  married  woman  power  to  sell  her  lands  if  her 
husband  joined  in  the  conveyance,  though  it  required  that  she 
be  examined  separate  and  apart  from  her  husband,  by  an  officer, 
as  to  whether  her  consent  to  the  conveyance  was  voluntary.  Any 
land,  however,  which  constituted  part  of  the  wife's  separate  estate, 
she  could  deal  with  as  if  unmarried.'^  In  some  states  the  deed 
of  a  married  woman  who  is  also  an  infant  is  void;'-  in  others 
it  is  voidable  only."'  Conveyances  at  common  law  of  a  wife's 
lands  could  be  made  only  by  a  fine  or  recovery.'*  The  disabilities 
of  married  women  to  take  and  deal  with  real  estate  have  been 
very  largely  removed  by  statute.'"  In  some  states  they  have  as 
much  power  in  this  respect  as  if  unmarried,  though  the  statutes  in 
many  states  provide  that  the  husband  must  join  in  the  conveyance, 
and  the  provision  for  a  separate  examination  of  the  wife  has  been 
re-enacted  in  many  states.  The  cases  under  these  married  women's 
acts,  as  they  are  called,  are  conflicting  on  many  points,  but  it  is 
held  that  the  statutes  must  be  strictly  followed."  At  common 
law  a  wife  could  not  take  a  conveyance  of  real  property  directly 
from  the  husband.'^  In  order  to  make  such  a  conveyance  of  land, 
it  was  necessary  for  the  husband  to  first  transfer  to  a  trustee,  who 
would  convey  back  to  the  wife."     Relief  was,  however,  granted 

29  2  Bl.  Comm.  293;  Scanlan  v.  Wrigrht,  13  Pick.  (Mass.)  523. 

«o  2  Bl.  Comm.  293.     But  see,  as  to  her  separate  estate,  ante,  p.  72. 

«i  See  ante,  p.  72.  She  cannot  avoid  a  conveyance  of  such  land.  McAnally 
V.  Heflin  (Ala.)  17  South.  87. 

«2  Hoyt  V.  Swar,  53  111.  134;   Youse  v.  Norcum,  12  Mo.  549. 

88  Bool  V.  Mix,  17  Wend.  (N.  Y.)  119;  Wilson  v.  Branch,  77  Va,  65;  Losey  V. 
Bond,  94  Ind.  67;  Richardson  v.  Pate,  93  Ind.  423.  See  Ellis  v.  Alford,  64 
Miss.  8,  1  South.  155. 

84  2  Bl.  Comm.  293. 

85  1  Stim.  Am.  St.  Law,  art.  650.  An  attempted  conveyance  may  operate  as 
a  contract  to  convey.     Brown  v.  Dressier  (Mo.  Sup.)  29  S.  W.  13. 

86  Garrett  v.  Moss,  22  111.  863;  Rumfelt  v.  Clemens,  46  Pa.  St  455;  Glidden 
V.  Strupler,  52  Pa.  St.  400;   Elwood  v.  Klock,  13  Barb.  (N.  Y.)  50. 

8T  Shepard  v.  Shepard,  7  Johns.  Ch.  (N.  Y.)  57. 

»«  Jewell  V.  Porter,  31  N.  H.  34;  Bancroft  v.  Curtis,  108  Mass.  47. 


§§  243-244)  ALIENS.  387 

in  equity  when  such  a  precaution  had  not  been  taken."  The  rule 
is  now  different  in  most  states,  and  the  husband  may  convey  to 
the  wife  and  the  wife  to  the  husband  directly."  In  some  states 
it  is  held  that  a  wife  cannot  give  a  power  of  attorney  to  convey 
her  lands; *^  but  where  her  disabilities  have  been  removed  there 
seems  to  be  no  good  reason  for  this  rule."  Even  at  common  law, 
when  the  disability  of  coverture  was  removed  by  death  or  divorce, 
the  power  to  convey  was  restored.  The  power  of  a  married  woman 
to  act  as  trustee  has  already  been  considered.** 

Wills. 

By  the  common  law  a  married  woman  has  no  power  to  dispose 
of  her  lands  by  will,*"^  but  in  equity  such  a  power  is  recognized 
as  to  all  property  coming  under  the  jurisdiction  of  the  court."" 
In  many  states  the  statutes  now  give  married  women  the  same 
testamentary  power  as  though  unmarried,*^  and  in  some  states 
married  women  have  greater  power  to  devise  their  lands  than 
if  unmarried,  since  marriage  removes  the  disability  of  infancy.*" 

ALIENS. 

243.  At  common  law,  aliens  could  take  real  property,  "but 

their  title  could  be  divested  by  proceedings  insti- 
tuted by  the  officers  of  the  government,  called  *' of- 
fice found." 

244.  This  disability  has  been  removed  in  many  states  by 

statute. 

8»  Loomia  v.  Brush,  36  Mich.  40. 

40  Burdeno  v.  Amperse,  14  Mich.  91;  Allen  v.  Hopper,  50  Me.  871.  But  see 
Winans  v.  Peebles,  32  N.  Y.  423;   1  Stim.  Am.  St.  Law,  §  6471. 

*i  Snyder  v.  Sponable,  1  Hill  (N.  Y.)  567;   Oulds  v.  Sausom,  3  Taunt.  261. 

*2  See  1  Stim.  Am.  St.  Law,  §  6506. 

**  Ante,  p.  363. 

4  B  In  re  Steinmetz's  Estate,  168  Pa.  St  175,  81  AtL  1092.  The  power  of  a 
married  woman  to  devise  land  held  by  her  in  right  of  another— for  instance,  as 
executrix— is  an  apparent,  rather  than  a  real, exception  to  the  commou-law  dis- 
ability. Scammell  v.  Wilkinson,  2  East,  552.  And  see  Rich  v.  Cocliell,  9 
Ves.  369. 

46  1  Jarm.  Wills,  39;   1  Woenier,  Adm.  27. 

47  1  Stim.  Am.  St  Law,  §  6460.  And  see  Dlllard  T.  Dillard's  Ex'rs  (Va.)  21 
S.  E.  669. 

48  1  Stim.  Am.  St  Law,  §  2602. 


388        LEGAL  CAPACITY  TO  HOLD  AND  CONVEY  REALTY.    (Ch.  14 

Disabilities  of  aliens  consist  principally  in  their  incapacity  to  bold 
real  property  after  the  title  has  been  passed  to  them,  for  it  is 
held  that  the  title  passes  out  of  the  grantor  and  is  held  by  the 
alien  until  the  state  institutes  proceedings  to  divest  it.**  This  is 
called  "office  found."  Before  office  found  the  alien  can  sell  and 
convey  the  land  as  if  not  under  disability.^"  While  the  power  of 
aliens  to  hold  land  is  a  matter  for  state  regulation,  any  state  laws 
are  subject  to  treaties  which  may  be  made  by  the  United  States."^ 
In  many  states  the  disabilities  of  alienage  have  been  removed, 
while  in  others?  they  are  removed  only  as  to  resident  aliens.  In 
some  states  aliens  may  buy  and  hold  land,  but  are  not  permitted 
to  take  it  by  descent.'" 

Inheritance  hy  Aliens, 

At  common  law,  aliens  could  not  Inherit,  nor  could  the  Inherit- 
ance be  transmitted  through  them.  The  rules,  however,  have  been 
largely  changed  by  statute.  In  some  states  the  disabilities  are 
entirely  removed;  in  others  they  exist  except  as  to  alien  friends 
or  residents;  and  now  in  all  states,  probably,  the  alienage  of  an 
ancestor  would  not  prevent  the  inheritance  passing  to  naturalized 
citizens." 

*•  Doe  V.  Robertson,  11  Wheat  832;  Sheaffe  v.  O'Nell,  1  Mass.  256;  Wads- 
xworth  V,  Wadaworth,  12  N.  Y.  376. 

«o  Sheaffe  v.  O'Neil,  1  Mass.  256;  Marshall  t.  Conrad,  6  Call  (Va.)  864;  Hal- 
fStead  v.  Lake  Co.,  56  Ind.  363;  Montgomery  v.  Dorion,  7  N.  H.  475.  But  that 
(the  estate  so  conveyed  will  be  subject  to  forfeiture  in  the  bauds  of  the  grantee, 
Aee  Scanlan  v.  Wright,  13  Pick.  (Mass.)  523;  People  v.  Conklin,  2  Hill  (N.  Y.)  67. 

•1  Schnltze  v.  Scnultze,  144  111.  290,  33  N.  E.  201;  Hauenstein  v.  Lynbam,  lOo 
U.  S.  483;  Carneal  v.  Banks,  10  Wheat  181;  Chirac  v.  Chirac,  2  Wheat  259. 
For  restrictions  imposed  by  congress  on  the  capacity  of  aliens  to  hold  real  prop- 
erty, see  24  Stat  476. 

62  1  stim.  Am.  St  Law,  \  6013.  1  Shars.  &  B.  Lead.  Cas.  Real  Prop.  515.  See 
Bennett  v.  Hibbert  88  Iowa,  154,  55  N.  W.  93;  Wunderle  v.  Wuuderle,  144  111. 
40,  33  N.  E.  195.  A  citizen  caimot  inherit  in  some  states  through  an  alien  an- 
cestor, Furenes  v.  Michelson,  86  Iowa,  508,  53  N.  W.  416;  Beavan  v.  Went, 
165  111.  592,  41  N.  E.  91. 

•«  1  Stim.  Am.  St  Law,  §§  6013-6017;  1  Dembitz,  Land  Tit  302. 


§   245)  CORPORATIONS.  S89 


CORPORATIONS. 

245.  The  po-wer  of  corporations  to  take  and   convey  real 
property  is  regulated  by  their  charters. 

The  buying  and  selling  of  real  property  by  corporations  is  a 
matter  of  corporate  power,  which  in  each  case  is  regulated  by  the 
rights  and  privileges  conferred  on  the  corporation  by  its  charter,"* 
It  is  usual  to  limit  the  amount  of  real  property  which  certain  cor- 
porations may  own.  These  restrictions  apply,  however,  to  the 
value  of  the  land  at  the  time  it  is  purchased,  and  a  subsequent 
rise  in  value  will  not  require  the  corporation  to  dispose  of  a  part 
of  it."'"  At  common  law,  statutes  of  mortmain  existed,  which  pre- 
vented the  acquisition  of  lands  by  the  church.  No  such  statutes 
exist  in  this  country,"'  except  in  Pennsylvania,  where  the  English 
statutes  are  held  to  apply  as  far  as  applicable."'^  At  common  law, 
corporations  could  not  take  land  in  trust,  though  they  have  this 
power  now."®  Any  fuller  discussion  of  the  powers  of  corporations 
in  respect  to  real  property  belongs  more  particularly  to  a  treatise 
on  corporations. 

6*  Barry  t.  Exchange  Co.,  1  Sandf.  Ch.  (N.  Y.)  280;  Coggeshall  v.  Home  for 
Friendless  Children  (R.  I.)  31  Atl.  694. 

BE  Bogardus  v.  Trinity  Church,  4  Sandf.  Ch.  (N.  Y.)  633.  The  right  to  ques- 
tion the  capacity  of  a  corporation  to  hold  land  held  to  belong  exclusively  to  the 
state.     Schwab  Clothing  Co.  v.  Claunch  (Tex.  Civ.  App.)  29  S.  W.  922. 

B«  McCartee  v.  Asylum,  9  Cow.  (N.  Y.)  437;  Lathrop  v.  Bank.  8  Dana  (Ky.) 
114;  Potter  r.  Thornton,  7  R.  I.  252.  But  see  Carroll  v.  City  of  East  St  Louis, 
67  111.  568. 

6T  Methodist  Church  v.  Remington,  1  Watts  (Pa.)  218. 

»«  See  ante,  p.  263. 


890  BKSTBAINTS   ON    ALIENATION.  (Ch.   16 

CHAPTER  XV. 

RESTRAINTS  ON  ALIENATION. 

246.  Kinds  of  Restraints. 

247.  Restraints  Imposed  by  Law. 

248.  Restraints  In  Favor  of  Creditors. 

249.  Restraints  Imposed  In  Creation  of  Estate, 

KINDS  or  RESTRAINTS. 

246.  Restraints  on  the  po^wrer  to  alienate  real  property  are 

of  the  following  kinds: 

(a)  Restraints  imposed  by  law  (p.  390). 

(b)  Restraints  imposed  in  favor  of  creditors  (p.  392). 

(o)  Restraints  imposed  in  the  creation  of  the   estate  (p. 
394). 

SAME— RESTRAINTS  IMPOSED  BY  LAW. 

247.  By  the  early  common  law,  restraints  independent  of 

the  personal  capacity  of  the  grantor  or  the  form  of 
his  estate  were  imposed  on  the  owner  of  lands 

(a)  In  favor  of  his  heirs. 

(b)  In  favor  of  his  lord. 

IRstory  of  the  Right  of  AUenatioru 

At  first  estates  were  given  for  life  only,  no  larger  interests 
being  conveyed  when  the  feudal  system  was  at  its  height.  By 
custom,  or  by  the  construction  of  the  courts,  these  estates  were 
enlarged  into  estates  to  a  man  and  his  heirs.  By  such  limita- 
tions at  first  only  the  issue  of  the  first  taker  were  meant.  After- 
wards heirs  came  to  include  collaterals,  so  that  the  estates  were 
about  the  same  in  quantity  as  a  fee  simple  at  present.^  To  avoid 
this  result,  estates  were  limited  to  the  heirs  of  the  body  of  the 
first  tenant;  that  is,  they  were  fees  conditional  at  common  law. 

*  See  ante,  p.  44* 


§    247)  RESTRAINTS    IMPOSED    BY    LAW.  391 

These  were  changed  into  estates  in  fee  tail  by  the  statute  de  donis. 
The  tenants  were  thereby  prevented  from  aliening  their  estates, 
as  against  their  heirs  or  the  lord,  until  Taltarum's  Case,  which,  as 
we  have  seen,  took  away  all  restraints  on  the  alienation  of  estates 
in  fee  tail.*  As  to  the  general  power  of  a  man  to  alienate  his 
estate  as  against  his  heirs  or  the  lord  of  whom  he  held  it,  the  au- 
thorities offer  two  theories.'  One  is  that  we  are  to  begin  with  an 
almost  unlimited  power  of  alienation,  which  is  gradually  restricted, 
and  at  a  later  time  the  restrictions  are  removed.  The  other  is  that 
there  was  at  first  little  or  no  power  to  alienate  real  property,  and 
that  the  history  of  the  subject  of  alienation  has  been  a  history  of 
restrictions  removed.  It  is  probable,  however,  that  neither  theory 
is  correct,  but  that  the  law  in  early  times  was  unsettled,*  and 
remained  so  from  the  fact  that  there  were  but  few  sales  of  land 
for  cash,  but  that  all  transfers  took  the  form  of  subinfeudations,  in 
which,  from  the  services  and  rent  reserved,  the  heirs  or  the  lord 
would  receive  as  much  benefit  as  from  the  land,  so  would  not  be 
inclined  to  question  the  validity  of  the  conveyance.  There  are 
some  statements  in  the  books  that  a  man  had  greater  power  to  dis- 
pose of  lands  which  he  had  acquired  by  purchase  than  those  which 
came  to  him  by  descent. "^  In  other  places  it  is  intimated  that  a 
man  could  only  dispose  of  a  reasonable  portion  of  his  lands,  unless 
the  alienation  was  confirmed  by  his  heir;  though  he  always  had 
power  to  give  a  portion  of  his  lands  to  his  daughter  on  her  marriage, 
to  be  held  by  a  tenure,  which  was  called  frank  marriage.*  Questions 
as  to  tne  power  of  an  owner  of  lands  to  alienate  them  did  not 
begin  to  arise  until  after  the  passage  of  the  statute  of  quia  emp- 
tores,  which  prevented  subinfeudation  in  fee.  As  to  the  power 
of  a  lord  to  object  to  a  conveyance  by  his  tenants,  there  seems 
to  be  little  evidence,  though  it  was  provided  in  Magna  Charta  ^ 
that  a  tenant  could  not  dispose  of  so  much  of  his  land  that  he  would 
not  have  enough  left  to  perform  the  services  due  his  lord.  The 
churches  and  other  ecclesiastical  bodies  began  to  secure  so  much 
of  the  land  in  England  that  statutes  were  passed,  called  statutes 

»  See  ante,  p.  51,  »  Dig.  Hist.  Real  Prop.  (4th  Ed.)  VL 

«  1  Pol.  &  M.  Hist.  Eng.  Law,  SIO.         «  Dig.  Hist.  Real  Prop.  101. 
*  1  Pol.  &  M.  Hist  Eng.  Law,  326.       i  Chapter  39. 


<i92  RESTRAINTS    ON    ALIENATION.  (Ch.   16 

of  mortmain,  which  made  conveyances  to  them  void.*  These  statutes 
have  already  been  mentioned  in  another  connection.*  By  the 
early  common  law  a  man's  land  was  not  liable  to  be  taken  for  bis 
debts,  but  this  was  changed  by  the  statute  of  Westminster,"  the 
statute  of  Merchants/^  and  the  statute  of  27  Edw.  IIL  c  9." 

Personal  Capacity  and  Form  of  Estate, 

In  tlie  last  chapter  it  was  seen  that  certain  disabilities  of  the 
person  restrict  the  power  of  an  owner  of  lands  to  convey  it.  Other 
restrictions  on  the  power  of  alienation  due  to  the  nature  of  the 
owner's  interest  have  been  considered  in  connection  with  the  various 
estates;  for  instance,  the  restrictions  imposed  by  rights  of  dower 
and  curtesy,  or  restraints  imposed  by  covenant  on  the  power  of  a 
tenant  for  years  to  assign  or  sublet 

SAME— RESTRAINTS  IN  FAVOR  OF  CREDITORS— FRAUD- 
ULENT CONVEYANCES. 

248.  An  owner  of  land  must  not  so  dispose  of  it  that  Ms 
creditors  will  be  delayed  or  defrauded. 

Another  form  of  restriction  on  alienation  is  that  imposed  by  the 
law  when  it  prevents  a  man  from  conveying  his  lands  in  such  a 
manner  as  to  delay  or  defraud  his  creditors  in  the  collection  of  their 
debts."  Conveyances  for  such  a  purpose  are,  however,  valid  be- 
tween the  parties,"  and  in  other  cases  it  is  a  question  of  considera- 
tion and  intent.^'  Deeds  fraudulent  as  to  creditors  are  not  void, 
but  only  voidable,  and  an  innocent  purchaser  from  the  grantee 

8  Magna  Charta,  c.  43;   1  PoL  &  M,  Hist  Eng.  Law,  814. 
•  Ante,  p.  252. 

10  13  Edw.  L  c  18. 

11  13  Edw.  I. 

12  Called  "statute  Btaple."    See  2  Bl.  Comm.  161. 

18  Strauss  v.  Abrahams,  82  Fed.  810;  Spencer  v.  Slater,  4  Q.  B.  Div.  18. 
See  as  to  frauds  on  purchasers,  Gooch's  Case,  5  Coke,  60a;  Colville  v.  Park- 
er, do.  Jac.  158;    Doe  v.  Manning,  9  East,  59. 

1*  Campbell  v.  Whitson,  G8  111.  240;  Harmon  v.  Hannon,  63  III.  512;  Welsh 
T.  Welsh,  105  Mass.  229. 

16  Chandler  v.  Von  Roeder,  24  How.  224;   Bunn  v.  Ahl,  29  Pa.  St.  387. 


§    24S)  RESTRAINTS    IN    FAVOR    OF   CREDITORS.  393 

takes  a  jrood  title.^'  Conveyances  of  a  homestead  do  not  come 
within  the  rules  against  fraudulent  conveyances,  because  a  home- 
stead is  not  subject  to  levy  and  sale  for  debts,  except  privileged 
debts. ^^  As  to  what  conveyances  are  regarded  as  frandnlent,  the 
rule  is  that,  if  the  grantee  does  not  know  of  the  fraudulent  purpose 
of  his  grantor,  he  takes  a  good  title,^®  though  if  he  does  not  pay 
a  valuable  consideration,  he  cannot  hold  the  land  against  the  cred- 
itors.^® In  some  cases  a  sale  for  an  insufficient  consideration  may 
be  enough  to  put  the  grantee  on  inquiry,  and  thus  affect  him  with 
notice.*"  On  the  other  hand,  though  the  grantee  pays  a  valuable 
consideration,  if  he  knows  of  the  fraudulent  purpose  of  the  grantor, 
he  cannot  hold  the  land  against  the  grantor's  creditors.*^  Though 
a  person  be  actually  insolvent,  he  still  may  sell  his  lands  for  a 
valuable  consideration,  inasmuch  as  this  may  be  the  best  way  of 
providiiig  funds  for  the  benefit  of  his  creditors.*''  But  when  a 
man  is  io  embarrassed  financial  circumstances,  any  conveyance 
made  by  him  upon  a  merely  good  consideration  will  not  stand, — 
Bucb  aa  tran'sfers  to  a  wife  or  children. ^^     Marriage,  however,  Is 

i«Ander?o'a  v.  Roberts,  18  Johns.  (N.  Y.)  515;  Campbell  v.  Whitson,  68 
111.  240.  B'j'v  cf.  Doe  v.  Rusliam,  17  Q.  B.  723;  Beal  v.  Warren,  2  Gray 
(Mass.)  447;  Fleming  v.  Townsend,  6  Ga.  103;  Prodgers  v.  Langham,  1  Sid. 
133;    Manhattsn  Co.  v.  Evei-tson,  6  Paige  (N.  Y.)  457. 

IT  Drentzer  v.  Bell,  11  Wis.  114;  Wood  v.  Chambers,  20  Tex.  247.  And  see 
Gassett  v.  Grout,  4  Mete.  (Mass.)  490. 

18  Gridley  v.  Bingham,  51  111.  153;  Waterbury  v.  Sturtevant,  18  Wend.  (N. 
Y.)  353. 

i»Van  Wyck  v.  Seward,  18  Wend.  (N.  Y.)  375;  Potter  v.  McDowell,  31 
Mo.  62;    Hunters  v.  Waite,  3  Grat.  (Va.)  2G. 

20  Kalne  v.  Weigley,  22  Pa.  St.  179;    State  v.  Evans,  38  Mo.  150. 

21  Wadsworth  v.  Williams,  100  Mass.  126;  Williamson  v.  Wachenheim.  58 
Iowa,  277,  12  N.  W.  302.  Twyne's  Case,  3  Coke.  80b.  Cf.  Tibbals  v.  Jacobs. 
Bl  Conn.  428. 

2  2  State  Bank  v.  Whittle,  48  Mich.  1,  11  N.  W.  756;  Wood  v.  Clark,  121 
111.  359,  12  N.  B.  271;    Kellog  v.  Richardson,  19  Fed.  70. 

28  Boyd  T.  De  La  Montagnle,  73  N.  Y.  498;  Pratt  v.  Curtis.  2  Lowell,  87.  Fed. 
Cas.  No.  11,375;  Gridley  v.  Watson,  53  111.  193;  Baldwin  v.  Tuttle.  23  Iowa, 
74;  Hinde's  Lessee  v.  Longworth,  11  Wheat.  199;  Reade  v.  Livingstone.  3 
Johns.  Ch.  (N.  Y.)  481;  In  re  Ridler,  22  Ch.  Div  74.  Cf.  Freeman  v.  Pope, 
5  Ch.  App.  538;  Kent  v.  Riley,  L.  R.  14  Eq.  190;  Salmon  v.  Bennett,  1  Conn, 
525;  Winchester  v.  Charter,  12  Allen  (Mass.)  606;  Newstead  v.  Searles,  1  Atk. 
265. 


394  RESTRAINTS    ON    ALIENATION.  (Ch.   15 

regarded  as  a  valuable  consideration.'*  Conveyances  of  the  kind 
we  are  discussing  are  voidable  only  as  to  existing  creditors  in 
most  states,  though  in  some  other  states  subsequent  creditors  are 
permitted  to  assail  the  transaction,*''  especially  if  the  conveyance 
is  made  on  the  eve  of  incurring  large  obligations,  or  before  em- 
barking on  financial  risks.'®  As  to  bankrupt  and  insolvent  laws, 
it  can  only  be  said  here  that  any  preference  attempted  to  be  given 
one  creditor  over  the  others  is  void,'^  but  the  debtor  may  convey 
all  of  his  property  to  one  creditor,  instead  of  making  an  assign- 
ment." 

SAME— RESTRAINTS   IMPOSED    IW    CREATION    OP    ESTATE. 

249.  Restraints  on  alienation  of  real  property  imposed  in 
the  creation  of  the  estate  are  either 

(a)  Clauses  of  forfeiture  for  alienation,  or 

(b)  Clauses  forbidding  alienation. 

Mr.  Gray,  in  his  work  Restraints  on  Alienation,  divides  the  sub- 
ject as  we  have  indicated  in  the  black  letter;  that  is,  into  convey- 

2*  Prewit  v.  Wilson,  103  U.  S.  22;  Otis  v.  Spencer,  102  111.  622;  Clayton  v. 
Earl  of  Wilton,  6  Maule  &  S.  67,  note;  Clarke  v.  Wright,  6  Hurl.  &  N.  849, 
affirming  s.  c.  sub.  nom.  Dickenson  v.  Wrigbt,  5  Hurl.  &  N.  401;  Price  v. 
Jenkins,  5  Ch.  Div.  619,  reversing  4  Ch.  Div.  483.  Cf.  Townsend  v.  Westacott, 
2  Beav.  340;  Jenkins  v.  Keymes,  1  Lev.  237;  Warden  v.  Jones,  2  De  Ges  & 
J.  76. 

2  5  Dodd  V.  Adams,  125  Mass.  398;  Tuulson  v.  Chamblin,  88  111.  378;  Morrill 
V,  Kilner,  113  111.  318;  Buckley  v.  Duff,  114  Pa.  St.  596,  8  Atl.  188;  Shand  v. 
Hanley,  71  N.  Y.  819;  Sexton  v.  Wbeaton,  8  Wheat.  229.  See  Jeukyn  v. 
Vaugban,  3  Drew.  419. 

2  0  Case  v.  Phelps,  39  N.  Y.  164;  Tunison  v.  Chamblin,  88  111.  378;  Mackay  v, 
Douglas,  L.  R.  14  Eq.  106;  Ex  parte  Russell,  19  Ch.  Div.  588.  But  see  Todd 
V.  Nelson,  109  N.  Y.  316,  16  N.  E.  360. 

2  7  Peunimau  v.  Cole,  8  Mete.  (Mass.)  500;  Mackie  v.  Cairns,  5  Cow.  (N.  Y.) 
547.  Any  reservation  to  tlie  debtor  is  void,  Harris  v.  Sumner,  2  Pick.  (Mass.) 
129. 

2  8  Giddings  v.  Sears,  115  Mass.  505;  Holbird  v.  Anderson,  5  Term  R.  235; 
Livingston  v.  Bell,  3  Watts  (Pa.)  198;  McFarland  v.  Birdsall,  14  Ind.  126.  But 
see  Harris  v.  Sumner,  2  Pick  (Mass.)  129;  Grover  v.  Wakeman,  11  Wend. 
(N.  Y.)  187;  Thomas  v.  Jenks,  5  Rawle  (Pa.)  221;  Barney  v.  Griffin,  2  N,  Y. 
8G5;   Collomb  v.  Caldwell,  16  N.  Y.  484. 


§    249)  RESTRAINTS    IMPOSED   IN    CREATION    OF   ESTATE.  395 

ances  in  which  there  is  a  clause  of  forfeiture  on  attempted  aliena- 
tion, and  cases  in  which  there  is  a  clause  attempting  to  make  any 
alienation  by  the  grantee  of  no  effect.  When  a  fee-simple  estate 
is  conveyed  an  unqualified  condition  against  alienation  is  wholly 
void.2'  But  clauses  providing  for  a  forfeiture  on  alienation  to  cer- 
tain persons  are  valid,^°  though  it  is  doubtful  how  far  such  provi- 
sions for  imposing  a  forfeiture  for  alienation  except  to  certain  per- 
sons would  hold  good.^^  By  the  weight  of  authority,  conditions 
against  alienation  for  a  limited  time  are  void."  Conditions  of 
forfeiture  may  be  attached  to  estates  in  fee  simple  while  they 
are  contingent."'  As  to  estates  in  fee  tail,  a  condition  imposing  a 
forfeiture  for  alienation  is  good,"*  but  such  a  condition  may  be 
destroyed  by  a  barring  of  the  entail,"**  which  we  have  seen  cannot 
be  prevented."**     As  to  life  estates,  conditions  against  alienation 

*8  Totter  V.  Couch,  141  U.  S.  296,  11  Sup.  Ot.  1005;  Walker  v.  Vincent,  19  Pa. 
St  3G9;  Schermerhorn  v.  Negus,  1  Denio  (N.  Y.)  448;  Ware  v.  Cann,  10  Bam. 
&  C.  433;  Hood  v.  Oglander,  34  Beav.  513;  In  re  Rosher,  26  Ch.  Div.  801.  A 
condition  against  alienation  in  a  certain  manner  is  bad.  Joslin  v.  Rhoades,  150 
Mass.  301,  23  N.  E.  42;  Campbell  v.  Beaumont,  91  N.  Y.  464;  Van  Home  v. 
Campbell,  100  N.  Y.  2S7,  3  N.  E.  316;  Bills  v.  Bills,  80  Iowa,  269,  45  N.  W.  748; 
Holmes  v.  Godson,  8  De  Gex,  M.  &  G.  152.  See  Doe  v.  Glover,  1  C.  B.  448. 
See,  also,  Shaw  v.  Ford,  7  Ch.  Div.  669;   Jaclison  v.  Robins,  16  Johns.  (N.  Y.) 

537. 

80  Gray,  Restr.  Alien  (2d  Ed.)  §  31;  Wlnsor  v.  Mills,  157  Mass.  362,  32  N.  E. 
352;   Jackson  v.  Schutz,  18  Johns^  (N.  Y.)  174. 

«i  Doe  V.  Pearson,  6  East,  173,  held  a  restriction  of  alienation,  except  to 
Bisters  or  their  children,  good.  But  see  Attwater  v.  Attwater,  18  Beav.  330; 
Schermerhorn  v.  Negus,  1  Denio  (N.  Y.)  448.  And  see  for  other  valid  con- 
ditions In  re  Macleay,  L.  R.  20  Eq.  186. 

3  2  Potter  V.  Couch,  141  U.  S.  296,  315,  11  Sup.  Ct.  1005;  Mandlebaum  v. 
McDoneU,  29  Mich.  78:  Bennett  v.  Chapin,  77  Mich.  526,  43  N.  W.  893;  Roose- 
velt V.  Thurman,  1  Johns.  Ch.  (N.  Y.)  220;  Kepple's  Appeal,  53  Pa.  St.  211; 
Jauretche  v.  Proctor,  48  Pa.  St  466;  Anderson  v.  Cary,  86  Ohio  St  506;  In  re 
Rosher,  26  Ch.  Div.  801.  Contra,  In  re  Dugdale,  38  Ch.  Div.  176.  See  Large'a 
Case,  2  Leon.  82. 

8  3  Bank  of  State  v.  Forney,  2  Ired.  Eq.  (N.  C.)  181;  Large's  Case,  2  Leon. 
82,  3   Leon.  182. 

84  Croker  v.  Trevithin,  Cro.  Eliz.  35;  Anon.,  1  Leon.  292;  Newis  y.  Lark, 
Plowd.  403. 

35  Stansbury  v.  Hubner,  73  Md.  228,  20  Atl.  904;  Rex  v.  Burchell,  Amb.  379; 
Dawkins  v.  Penrhyn,  4  App.  Cas.  51.    And  see  Bradley  v.  Peixoto,  3  Yes.  324. 

•  6  Ante,  p.  51. 


396 


RESTRAINTS    ON    ALIENATION.  (Ch.    15 


are  jjood,'^  except  when  the  settlor  attempts  to  make  the  estate 
forfeitable  for  invohmtai-y  alienation. ^^  So,  too,  estates  for  years 
may  be  f?ranted  with  the  condition  that  they  shall  be  torfeited  on 
alienation,  and  such  a  condition  will  be  good.''^ 

As  to  the  other  form  of  restraints  on  alienation, — that  is,  by  the 
clause  providing  that  the  alienation  itself  shall  be  void, — it  may  be 
said  that  such  conditions  are  valid  in  no  case,*"  except:  (1)  That 
of  a  fee  tail,  though  this  may  be  destroyed  by  barring  the  entail.*^ 
(2)  In  many  states  an  equitable  life  interest  may  be  so  limited 
that  it  may  be  held  without  power  of  voluntary  or  involuntary 
alienation."  (3)  The  separate  estates  of  married  women  may  be 
limited  with  valid  conditions  restraining  their  alienation.*" 

«T  Waldo  V.  Cummings,  45  111.  421;  Camp  v.  Cleary,  76  Va.  140;  Dommett 
r.  Bedford,  6  Term  R.  684;  Sbee  v.  Hale,  13  Ves.  404;  Hurst  v.  Hurst,  21 
Ch.  Div.  278.    See,  also,  Rochford  v.  Hackman,  9  Hare,  475. 

8  8  In  re  Pearson,  3  Ch.  Div.  S07;  Higinbotham  v.  Holme,  19  Ves.  88;  Ex 
parte  Oxley,  1  Ball  &  B.  257.  See,  also,  Phipps  v.  Ennlsmore,  4  Russ.  131; 
Lester  v.  Garland,  5  Sim.  205;  Synge  v.  Synge,  4  Ir.  Ch.  337.  But  see  Brooke 
V.  Pearson,  27  Beav.  181;  Knight  v.  Browne,  SO  Law  J.  Ch.  649;  In  re 
Detmold,  40  Ch.  Div.  585. 

8»  Doe  V.  Hawke,  2  East,  481;  Roe  v.  Harrison,  2  Term  R.  425;  Roe  v. 
Galliera,  Id.  133.    And  see  ante,  p.  135. 

*o  As  to  a  fee  simple,  Blaekstone  Bank  v.  Davis,  21  Pick.  (Mass.)  42;  Todd 
V.  Sawyer,  147  Mass.  570,  17  N.  E.  527;  Mclntyre  v.  Mclntyre,  123  Pa.  St. 
829,  16  Atl.  783;  Bouldin  v.  Miller,  87  Tex.'  359,  28  S.  W.  940;  as  to  life 
estates.  Bridge  v.  Ward,  35  Wis.  687;  Butterfield  v.  Reed,  160  Mass.  361,  35 
N.  E.  1128;  McCormick  Harvesting  Mach.  Co.  v.  Gates,  75  Iowa,  343,  39  N. 
W.  657. 

*i  Cooper  V.  Macdonald,  7  Ch.  Div.  288. 

*2  Fisher  V.  Taylor,  2  Rawle  (Pa.)  33;  Eyrick  v.  Hetrlck,  13  Pa.  St.  488; 
Ovennau's  Appeal,  88  Pa.  St.  276;  Thackara  v.  Mintzer.  100  Pa.  St.  151; 
Claflin  V.  Clatlin,  149  Mass.  19,  20  N.  E.  454;  Broadway  Nat.  Bank  v.  Adams, 
133  Mass.  170;  Billings  v.  Marsh,  153  Mass.  311,  26  N.  E.  1000;  Steib  v. 
Whitehead,  111  111.  247;  Roberts  v.  Stevens,  84  Me.  325,  24  Atl.  873;  Smith 
V.  Towers,  69   Md.  77,  14  Atl.  497,  and  15  Atl.  92;    Barnes  v.  Dow,  59  Vt. 

*8  Moses  V.  Micou,  79  Ala.  564;  Monroe  v.  Trenholm,  114  N.  C.  590,  19  S. 
E.  377;  Baggett  v.  Meux,  1  Phil.  627;  Tullett  v.  Armstrong,  4  Mylne  &  C.  377; 
Cooper  V.  Macdonald,  7  Ch.  Div.  288.  Cf.  Barton  v.  Briscoe,  Jac.  603.  But 
see  Pacific  Nat  Bank  v.  Windram,  133  Mass.  175;  Jackson  v.  Von  Zedlltz, 
136  Mass.  342;  Holmes  v.  Penney,  3  Kay  &  J.  90.  And  cf.  Harland  v.  Binks, 
15  Q.  B.  713;    Russell  v.  Woodward,  10  Pick.  (Mass.)  408. 


•J    249)  RESTRAINTS    IMPOSED    IN    CREATION    OF    ESTATE.  397 

In  a  nnmber  of  states  statutes  forbid  the  suspension  of  the  power 
of  alienation  beyond  two  lives  in  being  at  the  creation  of  the  estate  ** 
or  of  persons  in  being.*' 

530,  10  AtJ.  258;  Tartridge  v.  Cavender,  96  Mo.  452,  9  S.  W.  785.  Cf.  Sanford 
V.  Lackland,  2  Dill.  6,  Fed.  Cas.  No.  12,312;  In  re  Coleman,  39  Ch.  Dlv.  443; 
Lord  V.  Bunn,  2  Younge  &  C.  Ch.  98.  A  limitation  over  on  bankruptcy  is 
good.  Nichols  v.  Eaton,  91  U.  S.  716.  Contra,  In  other  states.  Bryan  v. 
Knickerbocker,  1  Barb.  Ch.  (N.  Y.)  409;  Mebane  v.  Mebane,  4  Ired.  Eq.  (N. 
C.)  131;  Tillinghast  v.  Bradford,  5  R.  I.  205;  Heath  v.  Bishop,  4  Rich.  Eq. 
(S.  C.)  46;  Graves  v.  Dolphin,  1  Sim.  66;  Green  v.  Spicer,  1  Russ.  &  M.  395; 
Yoiinghusband  v.  Gisbome,  1  Colly,  400.  And  see  Gray,  Restr.  Allen.  (2d 
Ed.)  preface. 

**  Galway  v.  Bryce  (Sup.)  30  N.  Y.  Supp.  985;  Rausch  v.  Rausch  (Sup.)  31 
N.  Y.  Supp.  786;  In  re  Corlies'  WUl,  11  Misc.  Rep.  670,  S3  N.  Y.  Supp.  572; 
Sanford  v.  Goodell,  82  Hun,  869,  81  N.  Y.  Supp.  490.  See,  generally,  Chapl. 
Suspen.  Power,  e.  2. 

*6  Jordan  v.  Woodin  (Iowa)  61  N.  W.  948.  And  see  Phillips  v.  Harrow 
aowa^  61  N.  W.  484. 


89S 


TITLK, 


(Ch.  16 


CHAPTER  XVI. 


TITLE. 


250.  Title  Defined. 

251.  Acquisition  of  Title  by  State. 

252.  Acquisition  by  Private  Persona. 

253.  Grant  from  tlie  State. 

254.  Conveyances. 

255.  Common-Law  Conveyances. 

256.  Conveyances  under  the  Statute  of  Us«S> 

257.  Modem  Statutory  Conveyances. 

258.  Registered  Titles. 
259-260.  Requisites  of  Deeds. 

261.  Property  to  be  Conveyed. 

262.  Words  of  Conveyance. 
263-264.  Description  of  the  Property, 

265.  Execution  of  the  Writing. 

266.  Delivery  and  Acceptance, 

267.  Acknowledgment. 

268.  Witnesses. 

269.  Registry. 

270.  Covenants  for  Title. 

271.  Covenant  of  Seisin. 

272.  When  Broken. 

273.  How  Brolvon. 

274.  Covenant  against  Incumbranceit 

275.  How  Broken. 

276.  Covenant   of   Warranty. 

277.  How  Broken. 

278.  Special   Warranty. 

279.  Covenant  for  Further  Assuranca, 

280.  Estoppel.  . 

281.  Adverse  Possession. 

282.  Accretion. 

283.  Devise. 

284.  Descent. 

285.  Judicial  Process. 

286.  Conveyances  under  Licences. 

287.  Conveyances   under   Decrees. 
288-290.  Tax  Tltlos. 

291.  Eminent  Domain. 


§    251)  ACQUISITION    OF    TITLB    BY    STATE.  399 


TITLE  DEFINED. 

260.  Title  is  the  means   by  -which  the   o"WTiership  of  real 
property  is  acquired  and  held.     This  is  either 

(a)  By  descent,  or 

(b)  By  purchase. 

The  fact  which  in  any  case  gives  or  creates  ownership  over  real 
property  is  called  title.  Title  signifies  the  manner  in  which  estates 
and  interests  in  land  are  acquired.  At  the  beginning  of  real-prop- 
erty law  in  any  country  there  must  be  an  original  acquisition  of 
title  to  land.  After  title  has  been  thus  acquired  all  subsequent 
acquisitions  of  title  to  the  same  land  must  be  by  transfer  of  the  title. 

Descent  and  PurcTiase. 

All  titles  are  said  to  be  acquired  by  descent  or  by  purchase. 
Purchase  means  more  than  mere  buying,  it  includes  the  acquisition 
of  title  by  devise  or  by  gift.  In  short  title  by  purchase  means  title 
acquired  in  all  ways  except  by  descent, 

ACQUISITION  OF  TITLE  BY  STATR 

251.  Title  is  acquired  by  the  state 

(a)  By  discovery,  conquest,  and  treaty. 

(b)  By  confiscation  and  escheat. 

(c)  By  exercise  of  the  right  of  eminent  domaiii. 

(d)  By  ordinary  transfer  from  individuals. 

Discovery^  Conquest^  and  Treaty. 

In  the  United  States  the  title  to  the  land  was  acquired  by  Eu- 
ropean governments  by  discovery.  The  rights  so  gained  were 
claimed  to  be  exclusive  against  other  nations,  though  certain  rights 
were  recognized  in  the  Indians  as  occupants.^  Great  Britain  ac- 
quired title  to  the  land  within  the  limits  of  the  original  colonies 
partly  by  discoveiy  and  partly  by  conquests  and  treaties.  Rights 
so  acquired  were  granted  to  proprietors  and  corporations,  and  these 

1  Martin  v.  Waddell's  Lessee,  16  Pet.  367;  Fletcher  v.  Peck,  6  Cranch,  S7. 
See,  aa  to  Indian  titles,  1  Dembitz,  Laud  Tit.  5  65. 


400  TITLE.  (Ch.  16 

In  turn  purchased  the  rights  of  the  Indians.  These  conveyances 
bj  the  Indians  were  held  not  to  convey  the  freehold,  but  merely 
to  release  the  rights  of  the  grantors.^  Private  persons  were,  in 
the  main,  prohibited  from  buying  lands  from  the  Indians  without 
authority  from  the  government  of  the  colony  in  which  the  lands 
were  situated.*  The  rights  of  the  crown  of  Great  Britain  passed 
as  a  result  of  the  Revolutionary  War  to  the  states  and  to  the  United 
States.*  Tlie  rights  of  the  states  in  land  thus  acquired,  which  had 
not  been  disposed  of  to  actual  settlers,  were  nearly  all  conveyed  at 
a  later  time  to  the  general  government.  The  lands  held  by  the 
United  States  as  public  domain  have  been  increased  since  that 
time  by  various  treaties  and  purchases,  the  treatment  of  which 
pertains  rather  to  history  than  to  law. 

Confiscation  cund  Escheat. 

In  some  states  the  lands  of  persons  convicted  of  treason  or  felony 
are  confiscated  by  the  state,"  and  in  nearly  all  of  the  states,  if  a 
person  dies  intestate,  leaving  no  heirs,  his  real  property  escheats 
to  the  state.'  This  kind  of  escheat  is  not  the  same  as  the  feudal 
escheat  which  a  lord  could  claim  on  the  death  of  his  tenant  without 
heirs.^ 

Eminent  Domain. 

The  acquisition  of  land  by  the  state  under  the  power  of  eminent 
domain  is  subject  to  the  same  rules  as  acquisition  in  this  way  by 

2  Johnson  v.  Mcintosh,  8  Wheat  543;  Cherokee  Nation  v.  Georgia,  5  Pet 
I,  17;    U.  S.  v.  Cook,  19  Wall.  591. 

8  Goodell  V.  Jackson,  20  Johns.  (N.  Y.)  G93.  And  see  Marshall,  C.  J.,  In 
Johnson  v.  Mcintosh,  8  Wheat  543. 

*  Martin  v.  Waddell's  Lessee,  16  Pet.  3G7;  Com.  v.  Roxbury,  9  Gray  (Mass.) 
451;   People  v.  Ferry  Co.,  68  N.  Y.  71,  78. 

6  1  Stim.  Am.  St  Law,  §  11G2.  The  United  States  constitution  forbids  for- 
feiture beyond  the  life  of  the  offender.  Under  the  act  of  July  17,  1862,  con- 
fiscating the  property  of  persons  in  rebellion,  the  offender  had  no  estate  re- 
maining in  him  which  he  could  convey.  Wallach  v.  Van  Riswick,  92  U.  S. 
202.  When  a  forfeiture  Is  enforced,  the  United  States  or  state  takes  only  the 
title  of  the  offender.  Borland  v.  Dean,  4  Mason,  174,  Fed.  Gas.  No.  1,660; 
Shields  v.  Schiff,  124  U.  S.  351,  8  Sup.  Ct  510, 

«  1  Stim.  Am.  St.  Law,  art  115.  As  to  escheat  of  land  held  by  an  alien  on 
office  found,  see  ante,  p.  388. 

T  See  ante,  p.  30. 


§    253)  GRANT    FROM    THE    STATE.  401 

private  persons  and  corporations,  and  will  be  treated  of  in  that 
connection.' 

Transfer  from  Private  Persons. 

And  for  the  same  reason  acquisition  of  land  by  the  state  from 
private  persons  by  any  of  the  modes  of  conveyance  wiiich  operate 
between  individuals  will  not  be  considered  here.  The  states  may 
convey  land  to  the  United  States,  or  vice  versa,  by  ordinary  forms 
of  conveyance. 

ACQUISITION  BY  PRIVATE  PERSONS. 

252.  Title  is  acquired  by  private  persons 

(a)  By  grant  from  the  state  (p.  401). 

(b)  By  conveyance  from  individuals  (p.  405). 

(c)  By  estoppel  (p.  450). 

(d)  By  adverse  possession  (p.  466). 

(e)  By  accretion  (p.  470). 

(f)  By  devise  (p.  472). 

(g)  By  descent  (p.  478). 

(h)  By  judicial  process  (p.  486). 

GRANT  FROM  THE  STATE. 

253.  Land  owned  by  the  United  States  and  the  states  is 

conveyed  to  individuals  by  instruments  of  convey- 
ance called  patents. 

Titles  held  by  private  persons  are,  of  course,  originally  derived 
from  the  state.  In  construing  grants  from  the  state  the  cases  say 
the  presumption  is  always  in  favor  of  the  state,  thus  varying  from 
the  usual  inile,  which  is  that  in  conveyances  all  presumptions  are 
in  favor  of  the  grantee  and  against  the  grantor.^  It  is  doubted, 
however,  whether  the  rule  as  to  the  presumption  being  in  favor  of 
the  state  obtains  in  cases  where  the  grantee  has  paid  a  valuable 

•  Post,  p.  494. 

»  Mayor,  etc.,  of  Allegheny  v.  Ohio  &  P.  R.  Ck).,  26  Pa.  St.  855;  Townsend 
V.  Brown,  24  N.  J.  Law,  80;  Dubuque  &  P.  B.  Co.  v.  Litchfield,  23  How. 
66,  88. 

REAL  PROP. — 26 


402  TITLE.  (Ch.  16 

consideration.^'  The  rule  is  never  applied  unless  there  Is  an 
actual  ambiguity.^^  When  an  estate  on  condition  is  granted  by 
the  state,  no  entry  is  necessary  to  revest  the  title  in  the  state  on 
breach  of  the  condition.^* 

Public  Land  System. 

The  lands  owned  by  the  United  States  are  surveyed  and  sold 
according  to  the  following  plan,  and  states  which  own  public  lands 
follow  the  plan  of  the  federal  government  very  closely:^'  The 
lands  are  divided,  by  lines  manning  to  the  cardinal  points  of  the 
compass,  into  ranges,  townships,  and  sections;  the  ranges  being 
numbered  east  or  west  from  a  principal  meridian.  Each  township 
contains  23,040  acres,  being  G  miles  square.  The  sections  contain 
040  acres,  and  are  divided  in  halves,  quarters,  eighths,  etc.^*  By 
this  system  any  portion  of  land  may  be  located  with  certainty  and 
accuracy  by  means  of  section,  township,  etc.  Descriptions  of  this 
kind  are  sufficient  in  deeds.^^  The  public  domain  can  be  sold  only 
by  authority  of  congress.  This  authority  is  exercised  by  either  gen- 
eral or  special  acts.^*  The  first  sales  of  the  public  domain  were 
made  in  large  tracts.  But  since  this  congressional  survey  was  adopt- 
ed the  public  land  has  been  sold  through  local  land  ofiices  estab 
lished  in  the  Western  states;  the  land  is  first  put  up  at  auction 
to  be  sold  to  the  highest  bidder  at  not  less  than  a  minimum  price, 
and,  if  not  disposed  of  at  that  price,  it  is  left  to  be  sold  by  the 
land  office.^' 

Certificate  amd  Patent. 

One  who  wishes  to  acquire  public  land  must  make  an  entry 
on  the  land  selected,  and,  after  making  the  required  payment,  or 

10  Proprietors  of  Charles  River  Bridge  v.  Proprietors  of  Warren  Bridge,  11 
Pet.  420,  589;   Hyman  v.  Read,  13  Cal.  444. 

11  Martin  v.  Waddell's  Lessee,  16  PeL  367,  411;  Com,  v.  Roxbury,  9  Gray 
(Mass.)  492;  Proprietors  of  Charles  River  Bridge  v.  Proprietors  of  Warren 
Bridge,  11  Pet.  420,  589. 

12  Kennedy  v.  McCartney's  Heirs,  4  Port.  (Ala.)  141, 

13  See  1  Dembitz,  Laud  Tit.  18,  513. 
1*  Rev.  St  U.  S.  1878,  §  2395  et  seq. 
10  Bowen  v.  Prout,  52  111.  354. 

16  Irvine  v.  Marshall,  20  How.  558;   Bagnell  v.  Broderlck.  13  Pet  436. 
IT  Rev.  St  U.  S.  187S,  §  2357. 


§    253)  GRANT    FROM    THE   STATE.  403 

becoming  entitled  to  the  land  under  the  provisions  of  the  federal 
homestead  law/*  a  certificate  of  entry  is  issued  by  the  register  of 
the  land  office,  which  entitles  the  claimant  to  a  patent.     The  patent 
is  the  formal  conveyance.    It  is  signed  by  the  president  of  the 
United  States,  or  by  some  authorized  person  for  him,  and  sealed 
with  the  seal  of  the  United  States.     The  cases  as  to  the  effect  ot 
a  certificate  of  entry  and  a  patent  are  somewhat  confused,  and  there 
is  in  particular  some  conflict  between  the  decisions  of  the  federal 
and  the  state  courts.     A  patent  is  the  highest  evidence  of  title.^^ 
Between  two  patents,  the  first  issued  is  superior,  and  the  second 
conveys  nothing.^"     A  patent   can  be  assailed  only  for  fraud  or 
mistake,  and  can  be  avoided  only  by  the  government,  or  by  suit  in 
its  name.'^     A  patent  cannot  be  attacked  in  a  collateral  proceed- 
ing."    Until  the  patent  is  issued,  the  legal  title  remains  in  the 
United  States.^"     The  equitable  title,  however,  is  in  the  holder  of 
the  certificate  of  entry."     This  equitable  title  he  may  sell  or  devise, 
and  it  descends  to  his  heirs."     His  heir,  devisee,  or  assignee  may 
claim  the  patent  by  virtue  of  the  certificate.'^     If  the  claimant 
dies  before  the  patent  is  issued,  it  is  issued  to  his  heir  or  devisee, 
as  the  case  may  be."     If  it  is  issued  in  the  name  of  the  holder  of 
the  certificate  after  his  death,  it  takes  effect  for  the  benefit  of  the 
heirs.^* 

18  See  ante,  p.  126. 

i»  Irvine  v.  Tarbat,  105  Cal.  237,  88  Pac.  896;  Bagnell  v.  Broderlck,  13  Pet. 
436.    And  see  Maxey  v.  O'Connor,  23  Tex.  238. 

2  0  Stockton  V.  Williams,  1  Doug.  (Mich.)  546,  560. 

21  Carter  v.  Thompson,  65  Fed.  329;  San  Pedro  &  Canon  del  Agua  Co.  v. 
U.  S.,  146  U.  S.  120,  13  Sup.  Ct.  94;  U.  S.  v.  Minor,  114  U.  S.  233,  5  Sup. 
Ct.  836;  U.  S.  v.  Iron  Silver  Min.  Co.,  128  U.  S.  673.  9  Sup.  Ct.  195.  But 
see  Tameling  v.  Enimigration  Co.,  93  U.  S.  644. 

2  2  Knight  V.  Land  Ass'n,  142  U.  S.  161,  12  Sup.  Ct  258.  But  see  Miuter 
V.  Crommelin,  18  How.  87. 

2  3  u.  S.  V.  Steenerson,  1  C.  C.  A.  552,  50  Fed.  504. 

2  4  American  Mortg.  Co.  v.  Hopper,  56  Fed.  67. 

2  5  Brill  V.  Stiles,  35  111.  305. 

2  0  Brush  V.  Ware,  15  Pet.  93;  Forsythe  v.  Ballance,  6  McLean,  562,  Fed. 
Cas.  No.  4,951. 

2T  Gait  V.  Galloway,  4  Pet.  332;  Reeder  v.  Barr,  4  Ohio,  458;  Shanks  v. 
Lucas.  4  Blackf.  (Ind.)  476. 

2  8  Schedda  v.  Sawyer,  4  McLean,  181,  Fed.  Cas.  No.  12,443;   Stubblefield  v. 


404  TITLE.  (Ch.  16 

I^e-Emption. 

Under  the  pre-emption  laws,  which  are  enacted  for  the  purpose  of 
encouraging  actual  settlement  of  the  public  lands,  a  right  is  ac- 
quired by  entry  and  settlement  to  claim  a  certificate  of  entry  at 
the  minimum  price  fixed  for  the  land  in  preference  to  any  other 
person.  The  right  can  be  claimed  only  for  160  acres,^®  and  this  must 
not  be  lands  which  have  been  reserved,  or  which  are  within  any  city 
or  town.  Nor  can  lands  on  which  there  are  known  salt  or  other 
mines  or  lands  which  are  occupied  for  the  purpose  of  trade  or  manu- 
facture be  pre-empted.'"*  One  claiming  the  pre-emption  right  must 
not  own  more  than  320  acres  in  any  state  or  territory,  and  must  not 
have  abandoned,  in  order  to  make  the  pre-emption,  a  home  within 
the  state  or  territory  wherein  the  pre-empted  land  lies.^^  The 
right  of  pre-emption  is  assignable  only  against  the  assignor,'*  and 
not  against  the  government.'*  Nor  is  it  subject  to  le^^  for  the 
debts  of  the  pre-emptor.'*  The  pre-emption  laws  were  repealed  by 
the  act  of  March  3,  1891,'*  and  therefore  land  can  no  longer  be 
acquired  in  this  way." 

Bogss,  2  Ohio  St.  216;    Phillips  v.   Sherman,   36  Ala.   189.    But  see  Gait  v. 
Galloway,  4  Pet.  332;    Galloway  v.  Findley,  12  Pet.  264;    Blankenpickler  r. 
Anderson's  Heirs,  16  Grat.  (Va.)  59. 
2  9  Rev.  St.  U.  S.  §  2259. 

80  Rev.  St.  U.  S.  §  2258. 

81  Rev.  St  U.  S.  §  2260.  And  see  Bogan  v.  Mortgage  Co.,  11  0.  C.  A.  128,  63 
Fed.  192. 

8  2  Delaunay  v.  Burnett,  9  111.  454;  Camp  v.  Smith,  2  Minn,  155  (Gil.  131). 
The  pre-emptor's  rights  descend  to  his  heirs.  Bemler  v.  Bernler,  147  U.  S. 
243,  13  Sup.  Ct.  244. 

8  3  Rev.  St.  U.  S.  §  2263. 

8  4  Rogers  V.  Rawlings,  8  Port  (Ala.)  320. 

8  5  26  Stat  1097. 

8«  See  1  Dembitz,  Land  'Ht  524. 


I    255)  COMMON-LAW    CONVKYANCKa.  40^ 


CONVEYANCES. 

254.  The  instruments  by  which  title  is  conveyed  are  of 

four  kinds: 

(a)  Common-law  conveyances  (p.  405). 

(b)  Conveyances  operating  under  the  statute  of  uses  (p. 

409). 

(c)  Modern  statutory  conveyances  (p.  411). 

(d)  Conveyances  of  registered  titles  (p.  412). 

SA.ME— COMMON-LAW  CONVEYANCES. 

255.  The  common-law  conveyances  are  divided  into 

(a)  Primary,  which  include 

(1)  Feoffment  (p.  405). 

(2)  Gift  (p.  406). 

(3)  Grant  (p.  407). 

(4)  Lease  (p.  407). 

(5)  Exchange  (p.  407). 

(6)  Partition  (p.  408). 

(h)  Secondary,  w^hich  include 

(1)  Release  (p.  408). 

(2)  Confirmation  (p.  408). 

(3)  Surrender  (p.  408). 

(4)  Assignment  (p.  409). 

(5)  Defeasance  (p.  409). 

Primary  and  Seconda/ry  Conveyances, 

By  primary  conveyances  are  meant  those  which  are  original,  and 
create  estates  in  land.  Secondary  conveyances  are  those  which 
enlarge,  restrain,  extinguish,  or  transfer  estates  already  existing."' 
These  distinctions  are  not  now  much  used. 

Feoffinent. 

Feoffments,  though  little  used  in  modern  times,  were  at  common 
law,  in  early  times,  almost  the  only  form  of  conveyance  used  for 

«'  2  Bl.  Coram.  310,  324. 


406  TITLE.  (Ch.  16 

the  transfer  of  estates  in  possession.  Feoffment  signifies  the 
granting  of  a  feud,  and  the  word  "feoffment"  was  used  at  common 
law  as  meaning  the  conveyance  of  a  fee  simple.  Feoffment  as  a 
conveyance  consists  of  a  symbolical  delivery  of  the  land  by  the 
grantor  or  feoffor,  as  he  was  called,  to  the  grantee  or  feoffee.  This 
was  done  by  the  persons  going  upon  the  land,  and  the  feoffor 
giving  to  the  feoffee  a  twig  or  turf  taken  from  the  land,  at  the  same 
time  using  words  which  showed  that  he  intended  to  transfer  the 
land  to  him.  This  ceremony  was  called  livery  of  seisin.'^  There 
was  a  distinction  made  between  seisin  in  deed  and  seisin  in  law. 
The  former  was  when  the  livery  of  seisin  took  place  on  the  land 
itself;  the  latter  when  the  parties  were  not  actually  on  the  land, — 
as  when  the  transfer  was  made  in  sight  of  the  premises,  but  with- 
out an  actual  entry  on  them."  In  later  times  livery  of  seisin  was 
usually  accompanied  by  a  written  deed,  especially  when  the  limita- 
tions of  the  estate  granted  were  numerous.  But  this  deed  was  only 
evidence  of  title,  and  not  a  conveyance  itself.*"  As  has  already 
been  said,  a  feoffment  might  have  a  tortious  operation,  as  when  a 
person  attempted  to  convey  by  feoffment  a  greater  estate  than  he 
himself  possessed-  The  effect  of  such  a  feoffment  was  to  destroy  the 
estate  which  the  feoffor  did  possess,  and  entitle  the  remainder-man 
to  enter  at  once.  The  tortious  operation  of  these  conveyances  is 
now  abolished  in  the  United  States.** 

"Gift"  was  the  term  applied  to  a  conveyance  creating  an  estate 
in  fee  tail.  The  only  difference  between  a  gift  and  a  feoffment 
•was  that  the  former,  while  accompanied  by  the  same  ceremony 
;as  a  feoffment,  had  limitations  to  the  heirs  of  the  body  of  the  first 
donee;  that  is,  an  estate  tail  was  created.*" 

8  8  See  2  Bl.  Comm.  310,  313;  Terry  v.  Price,  1  Mo.  553;  Bryan  y.  Bradley, 
16  Com.  474. 

«9  Digby,  Hist.  Real     Prop.  (4th  Ed.)  145. 

4  0  French  v.  French,  3  N.  H.  234;  Smith  v.  Lawrence,  12  Mich.  431.  Livery 
might  be  made  by  the  delivery  of  the  deed.  Thoroughgood's  Case,  9  Colie, 
136a. 

*i  See  ante,  p.  59. 

♦2  2  Bl.  Comm.  816;  Plerson  t.  Armstrong,  1  Iowa,  282,  202. 


§    255)  COMMON-LAW    CONVEYANCES.  407 

Gra/nt. 

"Grant"  was  the  name  of  the  conveyances  which  were  proper 
for  the  transfer  of  incorporeal  interests  in  land,*^  which  were  said 
"to  lie  in  grant,"  and  not  "in  livery,"  the  latter  being  the  term  used 
to  designate  convej-ances  of  corporeal  interests  by  feoffment  The 
term  "grant"  is  now  used  to  designate  all  kinds  of  conveyances.** 
A  grant  did  not  have  any  tortious  operation. 

Lease. 

A  lease  is  the  instrument  used  to  create  estates  less  than  free- 
hold, and  usually  contains  a  reservation  of  rent.  At  common 
law,  however,  the  term  was  applied  to  conveyances  of  particular 
estates  as  for  life  as  well  as  estates  in  fee  simple  in  which  a  rent 
was  reserved.*'  By  the  early  common  law  no  writing  was  necessary 
for  a  lease,  though  an  entry  was.*®  Now,  however,  by  the  statute 
of  frauds,  there  must  be  a  writing  when  the  lease  is  for  more  than 
a  short  period,  which  differs  in  the  various  states.*^  Leases  have 
already  been  considered  more  fully  in  treating  of  estates  less  than 
freehold.*' 

Exchange. 

An  exchange  is  a  "mutual  grant  of  equal  interests,"  the  transfer 
of  one  estate  being  the  consideration  for  the  transfer  of  the  other. 
Exchange  applies  to  transfers  of  estates  in  expectancy  as  well  as  of 
those  in  possession.*®  But  estates  which  are  exchanged  must  be 
of  the  same  kind,  as  a  fee  simple  for  a  fee  simple,  and  not  a  fee 
simple  for  a  life  estate.  The  estates,  however,  need  not  be  of  the 
same  value. "^  To  make  an  exchange  effectual,  there  must  be  an 
entry,  though  no  livery  of  seisin  is  necessary.  If  the  estates  are 
not  in  possession,  a  deed  is  required,  and  in  the  deed  the  word 

*8  2  Bl.  Comm.  317;    Huff  v.  McCauley,  53  Pa.  St  206;    Drake  v.  Wells,  11 
Allen  (Mass.)  141.    As  to  a  reversion,  see  Doe  v.  Cole,  7  Bam.  &  C.  243. 
**  Ross  v.  Adams,  28  N.  J.  Law,  160;   Peck  v.  Walton,  26  Vt.  85. 
*B  2  Bl.  Comm.  317. 
*«  Williams  v.  Downing,  18  Pa.  St.  60. 
*7  1  stim.  Am.  St  Law,  §  4143. 
»8  Ante,  p.  128. 

4»  2  Bl.  Comm.  323.    And  see  Long  v.  Fuller,  21  Wis.  123. 
8  0  Wilcox  V.  Randall,  7  Barb.  (N.  Y.)  633. 


40^  TITLE.  (Ch.    16 

"escambium"  had  to  be  used  at  common  law,  and  no  equivalent  ex- 
pression was  sufficient" 
Partition, 

Partition  has  already  been  treated  of  as  the  method  of  dividing 
joint  estates  so  that  the  owners  would  hold  in  severalty,"-  and 
Deeds  no  further  consideration  here. 
Release. 

We  now  come  to  the  secondary  conveyances,  the  first  of  which 
is  release.  A  release  technically  is  the  conveyance  of  a  future 
estate  to  one  having  an  estate  in  possession,  though,  if  the  grantee 
has  a  constiTictive  possession,  it  is  suificient.  For  a  release  no  liv- 
ery of  seisin  is  necessary,  but  the  future  estate  must  be  an  imme- 
diate one;  that  is,  with  no  intervening  estate  between  the  one  in 
possession  and  the  estate  which  is  released."  A  release  is  like 
our  modern  quitclaim  deed,  except  that  in  the  quitclaim  possession 
in  the  grantee  is  not  necessary."  And,  further,  in  the  release, 
privity  of  estate  between  the  parties  was  required."  The  usual 
words  in  the  release  are  "demise,  release,  and  forever  quitclaim." 
Confirmation, 

A  confirmation  is  a  conveyance  used  to  make  good  a  former 
voidable  conveyance."  It  cannot  be  used  if  the  conveyance  which 
it  is  attempted  to  validate  was  originally  void,"  though  such  an 
instrument  would  now  by  many  courts  be  made  operative  as  some 
other  form  of  conveyance;  for  instance,  as  a  bargain  and  sale." 
The  operative  words  used  in  a  confii-mation  are  "given,  granted, 
ratified,  approved,  and  confirmed." 
Surrender, 

A  surrender  is  the  converse  of  a  release,— that  Is,  it  Is  a  con- 
veyance by  one  in  possession  of  a  present  vested  estate  of  his  in- 

Bi  2  Bl.  Comm.  823. 
8  2  Ante,  p.  344. 
63  2  Bl.  Comm.  324. 

B*  Doe  V.  Reed,  5  111.  117;   Kerr  v.  Freeman,  33  Miss.  29a 
6s  Smith's  Heirs  v.  Bank,  21  Ala.  125. 

6  8  Adlum  V.  Yard,  1  Rawle  (Pa.)  171,  177;    Ing  v.  Brown,  3  Md.  CTh.  521; 
English  V.  Young,  10  B.  Mon.  (Ky.)  14L 
6T  Branham  v.  Mayor,  etc.,  24  Cal.  585;    Barr  v.  Schroeder,  32  Cal.  609. 
6  8  Fauntleroy's  Heirs  v.  Dunn,  3  B.  Mon.  (Ky.)  594. 


§    256)  CONVEYANCES    UNDER    THE    STATUTE    OP    USES.  409 

terest  to  one  entitled  to  the  next  estate  in  the  remainder  or  rever- 
sion,"' as  in  a  release,  privity  of  estate  between  the  parties  is  nec- 
essary, and  the  surrender  can  be  only  to  one  who  holds  the  next 
immediate  estate.®^  No  deed,  however,  is  necessary  to  the  validity 
of  a  surrender.®^  The  technical  words  used  for  a  conveyance  operat- 
ing as  a  surrender  are  "surrendered,  granted,  and  yielded  up.** 
Quitclaim  deeds  are  now  used  in  place  of  surrenders. 

Assignment. 

An  assignment  is,  as  we  already  know,  the  term  applied  to  a 
conveyance  of  a  leasehold  which  is  already  in  existence.^''  So, 
too,  there  may  be  an  assignment  of  a  mortgage.*' 

Defeasance. 

A  defeasance  has  been  treated  of  in  connection  with  mortgages, 
it  being  a  condition,  either  in  the  mortgage  or  in  the  separate  in 
strument,  which  makes  the  mortgage  void  on  the  performance 
of  the  condition.®* 

SAME— CONVEYANCES  UNDER  THE  STATUTE  OF  USES. 

256.  The  conveyances  operating  under  the  statute  of  uses 
are 

(a)  Covenant  to  stand  seised  (p.  410). 

(b)  Bargain  and  sale  (p.  410). 

(c)  Lease  and  release  (p.  411). 

«9  Martin  v.  Stearns,  52  Iowa,  345,  3  N.  W.  92;  Scott's  Ex'r  T.  Scott,  18 
Grat  (Va.)  159. 

60  2  Bl.  Conim.  326. 

«i  Milling  V.  Becker,  96  Pa.  St.  182;  Whitley  v.  Gough,  Dyer,  140b;  Thomaa 
V.  Cook,  2  Bam.  &  Aid.  119;  Nickells  v.  Atherstone,  10  Q.  B.  944.  Cf.  Dodd 
V.  Acklom,  6  Mon.  &  G.  672;  Pheng  r.  Popplewell,  12  C.  B.  (N.  S.)  334.  But 
see  Aner  v.  Penn,  99  Pa.  St.  370;  Magennis  v.  MacCullogh,  Gilb.  Cli.  235; 
Roe  V.  Archbishop  of  York,  6  East,  86.  And  see  Hamerton  v.  Stead,  3  Barn. 
&  C.  478.  A  surrender  may  be  implied  by  the  acceptance  of  another  lease, 
Ive  V.  Sams,  Oro.  Eliz.  521;  Lyon  v.  Reed,  13  Mees.  &  W.  285;  but  not  if 
the  second  lease  is  void,  Davison  v.  Stanley,  4  Burrows,  2210;  Doe  v.  Courte- 
nay,  11  Q.  B.  702;  Doe  v.  Poole,  11  Q.  B.  713.  And  see  SchiefCelin  y.  Carpenter, 
15  Wend.  (N.  Y.)  400;    Coe  v.  Hobby,  72  N,  Y.  141. 

«2  See  ante,  p.  147. 

«3  See  ante,  p.  205.    And  see  Cowles  v.  Ricketts,  1  Iowa,  582. 

«*  See  ante,  p.  183,  and  2  Bl.  Comm.  327. 


410  TITLE.  (Ch.   16 

In  treating  of  equitable  estates  it  was  seen  that  the  statute 
of  uses  made  it  possible  to  convey  lands  by  instruments  which 
would  have  no  effect  at  common  law.*"  Three  conveyances  oper- 
ating under  this  statute  came  into  general  use.  They  were  cove- 
nants to  stand  seised,  bargain  and  sale,  and  leaSe  and  release. 
These  conveyances  are  used  to  create  legal  estates.  The  convey- 
ance itself  transfers  an  equitable  estate, — that  is,  a  use, — and  the 
statute  executes  the  legal  estate  in  the  cestui  que  use,  by  trans- 
ferring the  seisin  to  him."® 

dovenant  to  Stand  Seised. 

A  covenant  to  stand  seised  is  a  conveyance  operating  under  the 
statute  of  uses,  in  which  the  consideration  is  either  blood  or  mar- 
riage; that  is,  only  a  good  consideration  is  required.®^  In  Massa- 
chusetts no  consideration  whatever  is  required  for  the  validity 
of  a  covenant  to  stand  seised.*^  This  form  of  conveyance  is  prac- 
tically obsolete  in  the  United  States,  though  the  courts,  in  order 
to  give  effect  to  the  intention  of  the  parties,  will  sometimes  construe 
a  conveyance  to  be  a  covenant  to  stand  seised.®'  From  the  nature 
of  the  consideration  it  could  be  used  only  to  convey  land  to  a 
husband  or  wife,  children,  or  other  kinsmen. 

Bargain  and  Sale. 

The  conveyance  called  a  bargain  and  sale  was  the  same  as  a 
covenant  to  stand  seised,  except  that  a  valuable  consideration  was 
required  for  its  validity.^"  Many  of  the  cases  hold  that  a  recital 
in  the  deed  of  the  consideration  is  sufficient  evidence  of  its  having 
been  received,  and  the  requirement  for  a  valuable  consideration  has 
become  a  mere  form.^^     The  operation  of  a  deed  of  bai'gain  and 

«B  Ante,  p.  254. 

68  2  Bl.  Comm.  327;   Chenery  v.  Stevens,  97  Mass.  77. 

«T  Jackson  v.  Sebring,  16  Johns.  (N.  Y.)  515;  Jackson  v.  Delancey,  4  Cow. 
{N.  Y.)  427;   Bell  v.  Scammon,  15  N.  H.  381. 

6  8  Trafton  v,  HaWes,  102  Mass.  533. 

89  Eckman  v.  Eckman,  68  Ta.  St.  460;  Fisher  v,  Strickler,  10  Pa.  St.  348; 
Jackson  v.  McKenny,  3  Wend.  (N.  Y.)  233;  Jackson  v.  Swart,  20  Johns.  (N. 
Y.)  85;   Wallis  v.  Wallis,  4  Mass.  135. 

TO  Wood  V.  Chapin,  13  N.  Y.  509;  Jackson  v.  Alexander,  8  Johns.  (N.  Y.)  484; 
Wood  V.  Beach,  7  Vt.  522;   Bnsey  v.  Reese,  38  Md.  264. 

Ti  Fetrow  v.  Merriwether,  53  111.  278;    Jackson  v.  Fish,  10  Johns.  (N.  Y.) 


§    257)  MODERN    STATUTOKY    CONVEYANCES.  411 

sale  is  as  follows:  The  convejance  which  is  in  the  form  of  a  con- 
tract to  sell  raises  a  use  in  the  feoffee  which  the  statute  of  uses 
executes,  and  thereby  conveys  the  legal  estate  to  the  bargainee.^' 
In  order  to  give  notoriety  to  conveyances  by  bargain  and  sale, 
which  became  the  usual  form  for  transfer  of  lands,  the  statute  of 
enrollments  provides  that  such  deeds  must  be  enrolled  within  six 
months  after  their  execution,  or  be  of  no  validity.'^' 

Lease  a/nd  Release. 

To  evade  the  requirements  of  the  statute  of  enrollments  the 
expedient  called  a  lease  and  a  release  was  devised,  and  soon  became 
the  most  usual  form  for  a  conveyance  for  lands.  Its  operation  was 
as  follows.  A  lease,  usually  for  one  year,  was  given  to  the  intended 
grantee.  This  was  not  required  to  be  enrolled,  because  the  statute 
did  not  make  any  provision  for  chattel  interests.  By  a  release  dated 
the  next  day  after  the  lease  the  reversion  of  the  estate  was  conveyed 
to  the  lessee,  who  in  this  way  acquired  the  full  interest  in  the  land 
without  the  use  of  any  conveyance  which  had  to  be  enrolled.^* 

SAME— MODERN  STATUTORY  CONVEYANCES. 

257.  Statutes  in  many  states  provide  short  forms  of  con- 
veyances, ■which  are  either 

(a)  Warranty  deeds,  or 

(b)  Quitclaim  deeds. 

In  a  number  of  states  short  forms  have  been  prescribed  by  the 
statutes,  which  are  declared  sufficient  to  convey  various  estates  in 
land.'"  Except  where  superseded  by  these  statutory  conveyances,  con- 
veyances operating  under  the  statute  of  uses  may  still  be  employed. 
The  common-law  conveyances  are,  however,  still  sufficient  to  transfer 
lands,  though  their  use  is  unusual,^  ^  with  the  exception  that  feoff- 

456;  Jackson  v.  Dillon's  Lessee,  2  Overt.  (Tenu.)  2G1.  But  see  Perry  v.  Price, 
1  Mo.  553. 

T2  Chenery  v.  Stevens,  97  Mass.  77, 

T8  27  Hen.  VIII.  c.  16. 

T4  2  Bl.  Coram.  339;   I^wis'  Lessee  v.  Beall,  4  Har.  &  McH.  (Md.)  488. 

TBI  Stlm,  Am.  St.  Law,  art.  148. 

T«  Funk  V.  Creswell,  5  Iowa,  68;  Brewer  v.  Hardy,  22  Pick.  (Mass.)  376; 
Rogers  v.  Fire  Co.,  9  Wend.  (N.  Y.)  611. 


412  TITLE.  (Ch.   16 

ments  have  been  abolished  in  some  states.'^  Where  statutory  forms 
have  been  provided,  their  exclusive  use  is  not  required.  Many  of 
the  deeds  now  in  use  have  a  dual  character  from  the  operative 
words  used,  which  frequently  are  "give,  grant,  bargain,  and  sell." 
When  such  words  are  used,  courts  will  construe  them  in  the  way 
most  fitted  to  give  effect  to  the  intention  of  the  parties,^®  but  they 
will  be  held  to  convey  legal,  rather  than  equitable,  estates,  when 
such  construction  is  possible."'" 

Warrant?/  and  Quitclaim  Deeds. 

Our  most  usual  form  of  modern  conveyance  is  called  a  warranty 
deed.  Its  distinguishing  characteristic  is  that  it  contains,  besides 
the  words  of  conveyance,  covenants  of  warranty,  the  meaning  and 
effect  of  which  will  be  explained  subsequently.^^  Quitclaim  deeds 
differ  from  warranty  deeds  in  that  they  contain  no  such  covenants, 
and  are  much  like  a  common-law  release,  except,  as  has  already 
been  stated,  they  need  not  be  to  one  in  possession.^^  A  quitclaim 
deed  transfers  only  the  title  which  the  grantor  has,'"  and  does  not 
prevent  the  grantor  from  setting  up  a  future  acquired  title.'* 

SAME— REGISTERED  TITLES. 

358.  Illinois  has  provided  by  statute  an  optional  system 
of  title  registration,  the  principal  features  of  which 
are: 

(a)  Certificates  of  title   are  issued   to  the  owner  of  each 

estate  in  registered  land  for  his  interest  (p.  413). 

(b)  Transfers   of  title   can  be  made  only  on  the  public 

register  (p.  413). 

TT  1  Stim.  Am.  St  Law,  §  1470. 

T8  Russell  V.  Coffin,  8  Pick.  (Mass.)  143;   Trafton  v.  Hawes,  102  Mass.  533. 

T»  Sprague  v.  Woods,  4  Watts  &  S.  (Pa.)  194. 

8  0  Post,  p.  446. 

81  Kyle  V.  Kavanagb,  103  Mass.  356;   Rowe  v.  Beckett,  30  Ind.  154. 

8  2  Gage  V.  Sanborn  (Mich.)  64  N.  W.  32;  Mclnemey  v.  Beck,  10  Wash.  515, 
89  Pac.  130. 

88  Frost  V.  Society,  56  Mich.  62,  22  N.  W.  189;  City  and  County  of  San 
Francisco  v.  Lawton,  18  Cal.  465.  But  see  Welch  v.  Button,  79  III.  465;  Green 
Bay  &  M.  Canal  Co.  v.  Hewitt,  55  Wis.  90,  12  N.  W.  382. 


§    258)  REGISTERED    TITLES.  413 

(c)  Acquisition   of  title  by  adverse   possession   is   abol- 

ished as  to  registered  land  (p.  414). 

(d)  An   indemnity  fund   is  provided  to   reimburse    any 

persons  who   may  be  injured  by  the   operation   of 
the  act  (p.  414). 

By  an  act  approved  June  13,  1895,^*  the  legislature  of  Illinois 
Inaugurated  a  system  of  registration  of  titles  following  in  its  main 
lines  the  German  Grundbuch  and  the  Australian  system  of  registry 
of  titles,  or  the  so-called  Torrens  title  system.*  The  act  does  not 
become  operative  in  any  county  until  adopted  by  the  voters  of  the 
county."  After  the  act  has  been  adopted  by  a  county,  the  regis- 
tration of  the  title  of  any  owner  is  optional  with  him.«« 

Certificates  of  Title. 

When  a  tract  of  land  is  registered,  a  certificate  of  title  is  made 
out  and  kept  in  the  office  of  the  registrar,  and  a  duplicate  given  the 
owner.  Each  estate  in  the  land  is  represented  by  a  separate  cer- 
tificate, on  which  are  indorsed  "the  particulars  of  all  estates,  mort- 
gages, incumbrances,  liens,  and  charges  to  which  the  owner's  title 
is  subject."  *^  Joint  owners  may  each  take  separate  certificates  for 
their  individual  interests,  or  may  have  all  the  interests  embraced 
in  a  single  certificate.^* 

Same — Mortgages^  Leases^  and  Other  Charges. 

Mortgages  and  other  incumbrances,  contracts  to  sell,  and  leases 
for  not  more  than  10  years,  are  not  represented  by  separate  certifi- 
cates, but  the  instrument  creating  the  mortgage,  etc.,  is  filed  in  the 
registrar's  office,  and  a  duplicate  retained  by  the  mortgagee  or  les- 
see, a  "memorial"  of  the  incumbrance  being  entered  on  the  certifi- 
cate.®* 

Transfers  of  Registered  Land. 

After  land  has  been  registered,  any  of  the  ordinary  forms  of  con- 
veyance purporting  to  transfer  the  title  operate  only  as  contracts 
to  convey,  and  as  authority  to  the  registrar  to  transfer  the  title.*'* 
The  transfer  itself  is  effected  by  the  surrender  of  the  duplicate 

*  Since  the  text  was  written  a  similar  act  has  been  passed  in  Ohio.  35 
Wkly.  Law  Bui.  Append. 

«*  Laws  111.  1895,  p.  107,  «»  Laws  111.  1895,  §  22. 

85  Laws  111.  1895,  §  94.  «»  Laws  111.  1895,  §§  48-55. 

88  Laws  lU.  1895,  §  7.  •<>  Laws  111.  1895,  §  45. 

8  7  Laws  111.  1895,  §  20. 


414  TITLE.  (Ch.  16 

certificate  of  title  and  the  issuing  of  a  new  certificate  to  tlie  trans- 
feree."^ If  only  part  of  the  owner's  interest  is  transferred,  another 
certificate  is  issued  to  him  for  the  interest  remaining  in  him."^ 
Transfers  by  descent,  devise,  or  by  judicial  process  are  made  by  the 
registrar  in  accordance  with  the  orders  and  decrees  of  the  court.®' 

JVo  Title  hy  Aobverse  Possession. 

Section  30  of  the  act  provides:  "After  land  has  been  registered, 
no  title  thereto,  adverse  or  in  derogation  to  the  title  of  the  regis- 
tered owner,  snail  be  acquired  by  any  length  of  possession  merely."^ 

Indemnity  Fund. 

When  land  is  first  registered,  one-tenth  of  one  per  cent,  of  its 
value  must  be  paid  to  the  registrar,  to  provide  an  indemnity  fund, 
out  of  which  the  county  is  to  reimburse  any  person  sustaining 
"damage  through  any  omission,  mistake,  or  misfeasance  of  the 
registrar."  •* 

SAME— REQUISITES  OP  DEEDS. 

259.  For  a  valid   deed   or   other  conveyance   of  land   the 

follo^wing  are  requisites: 

(a)  Property  to  be  conveyed  (p.  415). 

(b)  Words  of  conveyance  (p.  416). 

(c)  A  description  of  the  property  (p.  419). 

(d)  A  writing,  executed  by  signing,  and  in  some  states 

by  sealing  (p.  426). 

(e)  Delivery  and  acceptance  (p.  433). 

(f)  Acknowledgment,  in  some  states  (p.  436). 

(g)  Witnesses,  in  some  states  (p.  439). 
(h)  Registry,  in  some  states  (p.  439). 

260.  Acknowledgment,  witnesses,  and  registry  are  not,  in 

some  states,  essential  to  the  validity  of  a  deed,  but 
are  necessary  to  give  priority. 

By  the  early  common  law,  feoffments  were  sufficient  to  convey 
title  by  the  mere  transfer  of  possession,  but  now  a  writing  is 
required  by  the  statute  of  frauds  for  the  transfer  of  any  estate, 

»i  Laws  lU.  1895,  §  39.  •«  Laws  lU.  1895,  §§  59-82. 

»2  Laws  111,  1895,  §  40.  •*  Laws  111.  1895,  §§  90-93. 


§261)  REQUISITES    OF    DEEDS.  .      416 

except,  as  already  seen,^*  tenancies  for  short  terms.  Conveyances 
in  writing  are  called  deeds.  The  definition  of  a  deed  in  real  prop- 
erty law  is,  "a  sealed  writing  conveying  real  estate."  But  in  those 
states  where  seals  have  been  abolished,  written  instruments  which 
convey  real  estate  are  still  termed  deeds.  And  hereafter  the  term 
deed  must  be  taken  to  mean,  unless  otherwise  specified,  a  written 
instrument  conveying  the  title  to  lands  with  or  without  a  seal, 
according  to  the  local  laws.  Deeds,  however,  are  to  be  distin- 
guished from  mere  agreements  to  convey  lands,  which  belong  to 
the  law  of  contracts.^'  Instruments  of  conveyance,  such  as  mort- 
gages and  leases,  are  properly  included  under  the  term  "deed." 

261.  PROPERTY  TO   BE   CON^VTEYED— For  a  valid   deed 
there  must  be  some  real  property  to  be  conveyed. 

In  order  that  a  deed  may  operate,  there  must  be  something  to  be 
conveyed.  What  can  be  conveyed  by  deed  will  be  seen  by  referring 
to  the  discussion  of  what  is  real  property,  given  in  our  first  chap- 
ter; and  the  converse  is  also  true, — that  anything  which  is  real 
property  can  only  be  conveyed  by  deed.'*"  On  the  other  hand,  at 
common  law  it  was  held  that  a  mere  possibility  of  having  an  estate 
in  land  at  a  future  time  could  not  be  conveyed,^^  but  this  rule  has 
been  somewhat  relaxed.  For  instance,  an  heir  has  been  permitted 
to  make.a  deed  of  lands  which  he  expected  to  inherit,  and  when  the 
title  came  to  him  by  descent  his  grantee  was  given  the  benefit  there- 
of.**     But  the  contrary  has  also  been  held.^*'** 

«B  Ante,  p.  132. 

9  6  See  Clark,  Cont.  103. 

9TA  deed  is  necessary  for  the  conveyance  of  an  Incorporeal  hereditament. 
Duke  of  Somerset  v.  Fogwell,  5  Barn.  &  C.  875;  Bird  v.  Higginson,  2  Adol. 
&  E.  696;  Tottel  v.  Howell,  Noy,  54.  And  see  ante,  p.  35L  A  parol  license 
to  a  tenant  from  year  to  year  to  quit  in  the  middle  of  a  quarter  is  bad. 
MoUett  V.  Brayne,  2  Camp.  103.  A  written  instrument  is,  of  course,  neces- 
sary for  the  conveyance  of  a  freehold  interest  in  lands.  Jackson  v.  Wood,  12 
Johns.  (N.  Y.)  73.  But  see  Neale  v.  Neale,  9  Wall.  1;  Syler  v.  Eckhart,  1  Bin. 
(Pa.)  378. 

9  8  Dart  V.  Dait,  7  Conn.  255. 

99  Trull  V.  Eastman,  3  Mete.  (Mass.)  121;  Stover  v.  Eycleshimer,  46  Barb. 
(N.  Y.)  84. 

100  Davis  V.  Hayden,  9  Mass.  519.    The  conveyance  of  an  expectancy  can- 


416  TITLE.  (Ch.  16 

262.  WORDS  OF  CONVEYANCE— A  valid  deed  must  con- 
tain sufficient  words  of  conveyance  to  transfer  an 
estate  in  the  land  from  the  grantor  to  the  grantee. 
This  will  be  treated  under  the  following  heads: 

(a)  Names  of  parties  (p.  416). 

(b)  Granting  clause  (p.  417). 

(c)  Exceptions  (p.  417). 

(d)  Reservations  (p.  418). 

(e)  Habendum  (p.  418). 

Names  of  Parties. 

The  name  of  the  grantor  should  be  stated  In  the  deed,  though 
some  cases  hold  that  the  mere  signing  of  the  grantor's  name  is  suf- 
ficient.^"^ If  the  grantor's  name  is  mentioned  in  the  deed,  his  sign- 
ing the  deed  by  a  wrong  name  will  not  invalidate  it^°^  The  grantee 
in  a  deed  must  be  made  certain,  and  therefore  it  is  generally  neces- 
sary to  name  him,  though  a  description  of  the  person  will  be  suf- 
ficient if  it  clearly  designates  who  is  to  take;  as,  for  instance,  where 
the  grantee  is  named  by  his  ofQce.^'^'  A  deed  of  land  to  a  "neigh- 
borhood" is  not  sufficiently  certain.^ °*  The  grantee  may,  however, 
be  designated  by  an  assumed  name,  though  a  deed  to  a  fictitious 

not  be  given  effeet  as  an  executory  contract  to  convey  unless  there  Is  a  suffi- 
cient consideration.  Bayler  v.  Com.,  40  Pa.  St.  37.  And  cf.  Gardner  v.  Pace 
(Ky.)  11  S.  W.  779. 

loiBurge  V.  Smith,  27  N.  H.  832;  Elliott  v.  Sleeper,  2  N.  H.  525;  CatliB 
V.  Ware,  9  Mass.  218;  Lord  Say  &  Seal's  Case,  10  Mod.  40.  And  see  Mardes 
V.  Meyers,  8  Tex.  Civ.  App.  542,  28  S.  W.  G93.  A  deed  signed,  "A.  B.,  Exec- 
utor," shows  sufficiently  that  it  is  made  in  a  representative  capacity.  Babcock 
V.  Collins,  60  Minn.  73,  61  N.  W.  1020.  But  see  Agricultural  Bank  of  Missis- 
sippi V.  Rice,  4  How.  225;  Peabody  v.  Hewett,  52  Me.  33;  Harrison  v. 
Simons,  55  Ala.  510;  Adams  v.  Medsker,  25  W.  Va.  127.  When  a  husband 
<^onveys  his  life  estate  in  his  wife's  lands,  the  fee  will  not  pass  by  the  wife 
signing  the  deed.    Flagg  v.  Bean,  25  N.  H.  49,  62,  63. 

102  Middleton  v.  Findla,  25  Cal.  76.  But  cf.  Boothroyd  v.  Engles,  23 
Mich.  19. 

10  3  Lawrence  v.  Fletcher,  8  Mete.  (Mass.)  153.  And  see  American  Emigrant 
Co.  V.  Clark,  62  Iowa,  182,  17  N.  W.  483. 

104  Thomas  v.  Inhabitants  of  Marshfield,  10  Pick.  (Mass.)  364.  A  deed  to 
*'A.  B.  Deceased  Estate"  is  void  for  want  of  a  grantee.  Mclnemey  v.  Beck, 
10  Wash.  515,  39  Pac.  130. 


§    262)  REQUISITES    OF    DEEDS.  417 

person  will  not  be  good.^°*  A  mistake  in  the  name  of  a  corpora- 
tion which  is  to  take  as  grantee  will  not  make  the  conveyance  void 
if  the  intended  grantee  can  be  ascertained.^ "•  And  where  the 
grantee  is  uncertain,  evidence  is  admissible  to  show  which  of  several 
persons  was  intended  to  take,^°^  and  parties  to  the  deed  are  suf- 
ficiently designated  by  their  first  and  last  names  without  the  use 
of  a  middle  name;  ^°*  and  so  the  addition  of  the  word  "junior"  and 
"senior"  are  not  necessaiy.^**^  It  is  usual  to  make  some  "addition"' 
to  the  names  of  the  parties  in  the  deed,  as  by  giving  the  residence. 
And  in  the  case  of  a  married  woman  the  name  of  her  husband  is 
frequently  added. 

Granting  Cla/ase. 

In  order  that  any  deed  may  be  operative,  it  must  contain  words 
of  conveyance  sufficient  to  transfer  an  estate  from  the  grantor  to 
the  grantee.^^"  The  technical  words  which  are  used  in  connection 
with  the  various  forms  of  conveyances  have  already  been  men- 
tioned,^ ^^  and  these  words,  or  some  equivalent  of  them,  must  be 
used.  Therefore  a  deed  which  contains  no  other  words  of  convey- 
ance than  "sign  over"  wUl  not  pass  a  title.^^* 

Exceptions. 

An  exception  is  something  reserved  from  the  operation  of  the 
deed;  that  is,  it  is  something  which  would  otherwise  pass  by  the 
description  of  the  lands  to  be  conveyed.^^'     For  a  valid  exception, 

10  B  Thomas  v.  Wyatt,  81  Mo.  188. 

106  Ashville  Division  No.  15  v.  Aston,  92  N.  C.  578. 

107  Webb  V.  Den,  17  How.  579;  Aultman  &  Taylor  Manuf'g  Co.  v.  Richard- 
son, 7  Neb.  1. 

10  8  Games  v.  Stiles,  14  Pet.  322;  Dunn  v.  Games,  1  McLean,  321,  Fed.  Gas. 
No.  4,176;  Erskine  v.  Davis,  25  111.  251;  Franklin  v.  Talmadge,  5  Johns. 
(N.  Y.)  84.  A  middle  initial  may  be  important  when  used.  See  Ambs  v.  Rail- 
way Co.,  44  Minn.  2G6,  4G  N.  W.  321. 

109  Kincaid  v.  Howe,  10  Mass.  203;   Cobb  v.  Lucas,  15  Pick.  (Mass.)  7. 

110  Hummelman  v.  Mounts,  87  Ind.  178;  Webb  v.  Mullins,  78  Ala.  111. 

111  Ante,  pp.  36,  47,  56. 

112  McKinney  v.  Settles,  31  Mo.  541. 

lis  Craig  v.  Wells,  11  N.  Y.  315;  Thompson  v.  Gregory,  4  Johns.  (N.  Y.)  81; 
Whitaker  v.  Brown,  46  Pa,  St.  197;  Ashcroft  v.  Railroad  Co.,  126  Mass.  197; 
Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  290;  Wiley  v.  Sirdorus, 
41  Iowa,  224;   Sloan  v.  Furniture  Co.,  29  Ohio  St.  568. 

REAL  PROP.— 27 


418  TITLE.  (Ch.  16 

the  thing  excepted  must  be  described  with  as  much  particularity 
as  is  required  in  the  description  of  the  land  conveyed/^*     All  rights 
in  the  land  excepted  from  the  operation  of  the  deed  remain  in  the 
grantor  as  they  were  before  the  conveyance.^  ^"^ 
Resei'vations. 

A  reservation  is  a  right  created  out  of  the  land  granted,  such  as 
the  reservation  of  a  rent.  The  word  "reservation,"  however,  need 
not  be  used  if  the  intention  is  otherwise  clear.^^*  An  exception,  so 
called,  in  the  deed,  will  be  construed  to  be  a  reservation  if  such  was 
the  intention  of  the  parties;  and  a  reservation  will  be  held  an  ex- 
ception if  that  was  the  purpose.^*^  A  reservation  can  be  made  only 
in  favor  of  the  grantor;  not  for  a  stranger.^ ^*  In  creating  a  res- 
ervation the  same  words  of  limitation  are  necessary  as  in  the  crea- 
tion of  an  estate.^^®  Reservations  are  used  generally  for  the  cre- 
ation of  rents,^^°  but  may  be  for  other  purposes,  such  as  an  ease- 
ment reserved  to  the  grantor  out  of  the  land  granted.^'*  A  reserva- 
tion is  the  same  as  a  reddendum. 

Habendum. 

The  habendum  of  a  deed  is  merely  formal,  and  is  that  part  of  the 
conveyance  which  commences  with  the  words  "to  have  and  to  hold." 

11*  Thompson  v.  Gregory,  4  Johns.  (N.  Y.)  81;  Thayer  v.  Torrey,  37  N.  J. 
Law,  339.  But  see  Wells  v.  Dillard,  93  Ga.  682,  20  S.  E.  263.  No  words  of 
limitation  are  necessary.  Winthrop  v.  Fairbanks,  41  Me.  307.  Cf.  Achom  v. 
Jackson,  8G  Me.  215,  29  Atl.  989. 

116  Munn  V.  Worrall,  53  N.  Y.  44;  Whitalier  v.  Brown,  46  Pa.  St  197. 

lie  Hornbeck  v.  Westbrook,  9  Johns.  (N.  Y.)  73;  Rich  v.  Zeilsdorff,  22  Wis. 
544;   Barnes  v.  Burl,  38  Conn.  541. 

11 T  Winthrop  v.  Fairbanks,  41  Me.  307. 

118  Illinois  Cent  R.  Co.  v.  Indiana  &  I.  C.  R.  Co.,  85  111.  211;  Hornbeck  v. 
Westbrook,  9  Johns.  (N.  Y.)  74.  But  see  West  Point  Iron  Co.  v.  Raymert,  45 
N.  Y.  703.  A  reservation  to  the  grantor  and  a  stranger  to  the  deed  for  the 
lives  of  both  has  b-aen  upheld.     Martin  v.  Cook,  102  Mich.  267,  60  N.  W.  679. 

119  Ashcroft  v.  Railroad  Co.,  12G  Mass.  198.  But  see  Dennis  v.  Wilson,  107 
Mass.  591. 

120  See  ante,  p.  376. 

121  Pettee  v.  Hawes,  13  Pick  Olass.)  323;  Hurd  v.  Curtis,  7  Mete,  (ilass.) 
91;  Choate  v.  Bumham,  7  Pick.  (Mass.)  274;  Bates  v.  Swiger  (W.  Va.)  21  S. 
E.  874;  Lacy  v.  Comstock,  55  Kan.  86,  39  Pac.  1024.  When  a  right  of  way 
is  reserved,  the  fee  in  the  whole  laud  passes  subject  to  the  easement. 
Moffitt  V.  Lytle,  165  Pa.  St  173,  30  Atl.  922. 


§§    263-264)  REQUISITES   OF   DEEDS.  419 

The  object  of  the  habendum  is  to  designate  what  estate  is  to  pass, 
and  contains  the  words  of  limitation.^"  If  the  habendum  is  repug- 
nant to  the  granting  clause,  the  habendum  is  void.^"  Nor  can  the 
habendum  be  made  to  include  lands  which  are  not  in  the  descrip- 
tion.^-* The  habendum  usually  repeats  the  names  of  the  grantees, 
and  one  may  be  named  in  the  habendum  who  is  not  in  the  granting 
clause;  for  instance,  a  remainder-man.^ ^ 5  /jj^^  habendum  may  en- 
large the  estate  given  in  the  granting  clause,^ ^^  or  restrict  it^^^ 
The  habendum  will  not  be  permitted  to  change  the  nature  of  the 
ownership,  as  by  making  owners  in  severalty  joint  owners.^"  The 
uses  and  trusts  accompanying  an  estate  are  usually  limited  in  the 
habendum. 

263.  DESCRIPTION  OF  THE  PROPERTY— A  valid   dead 

must  contain  a  sufficient  description  of  the  prop- 
erty to  be  conveyed  to  identify  it.  This  may  be  by 
reference  to 

(a)  Plats  and  maps  (p.  421). 

(b)  Monuments  (p.  422). 

(c)  Courses  and  distances  (p.  424). 

(d)  Quantity  (p.  425). 

264.  All  things  which  are   appurtenant  to  the   property 

described  pass  with  it  (p.  425). 

122  Wager  y.  Wager,  1  Serg.  &  R.  (Pa.)  374;  Mitchell  v.  Wilson,  8  Cranch, 
C.  C.  242,  Fed.  Cas.  No.  9,672. 

123  Major  V.  Buliley,  51  Mo.  227;  Ratcliffe  v.  Marrs,  87  Ky.  26,  7  S.  W.  395, 
and  8  S.  W.  876;  Flagg  v.  Eames,  40  Vt.  16;  Budd  v.  Brooke,  3  Gill  (Md.)  198. 

124  Manning  v.  Smith,  6  Conn.  289. 

126  Riggin  V.  Love,  72  111.  553;  Tyler  v.  Moore,  42  Pa,  St.  374;  Irwin's  Ileirs 
V.  Longworth,  20  Ohio,  581. 

126  Moss  V.  Sheldon,  8  Watts  &  S.  (Pa.)  160;  Jackson  v.  Ireland.  3  Wend. 
(N.  Y.)  99. 

127  Watters  v.  Bredin,  70  Pa.  St.  237;  Whitby  v.  Duffy,  135  Pa.  St.  620,  19 
Atl.  1005.  As  where,  by  the  granting  clause,  a  fee  simple  absolute  would  pass, 
the  habendum  may  show  an  intention  to  convey  a  less  estate.  Jamaica  Pond 
Aqueduct  v.  Chandler,  9  Allen  (Mass.)  159,  168;  Riggin  v.  Love,  72  lU.  553; 
Montgomery  v.  Sturdivant,  41  Cal.  290. 

128  Greenwood   v.  Tyler,   Hob,   314.    In   ascertaining   the   intention   of   the 


420  TITLE.  (Ch.  16 

The  object  of  the  description  in  a  deed  is  to  identify  the  land  to 
be  conveyed,  and  no  conveyance  can  be  operative  without  a  descrip- 
tion which  is  suflBcient  for  such  purpose  of  identification.^^"  The 
description,  however,  need  not  be  technically  accurate,  or  even 
clear.  It  will  be  sufficient  if  a  surveyor  can  locate  the  land  by  the 
description  given,  and  therefore  a  mere  error  will  be  disregard- 
ed.'»»  Where  there  are  material  errors  in  a  description,  which  are 
so  gross  that  the  deed  cannot  take  effect,  the  instrument  may  be  re- 
formed in  equity.^31  Latent  ambiguities  in  the  description  may  al- 
ways be  explained  by  parol. i"  Where  such  ambiguities  exist,  or 
the  description  is  conflicting,  the  question  for  the  courts  is  one  of 
construction.  To  give  effect  to  the  deed,  the  situation  of  the  par- 
ties at  the  time  of  its  execution  is  to  be  considered,  and  their  inten- 
tion at  that  time  is  the  test.^s"  For  the  purpose  of  showing  such 
intentions,  contemporaneous  writings  by  the  parties  may  be  used.^^* 
Where  the  terms  of  the  description  are  clear,  however,  no  question 
of  construction  arises,  and  the  intention  of  the  parties  will  not  be 
allowed  to  control,  though  it  is  shown  to  be  different  from  that  ex- 
pressed in  the  deed.^^^  In  construing  a  deed,  grammatical  con- 
struction and  punctuation  are  given  little  effect,  though  they  may 
be  of  value,  in  connection  with  other  things."'  All  parts  of  the 
deed  are  to  be  construed  together,  and  that  description  will  be 
adopted  which  will  give  effect  to  the  deed,  rather  than  one  which 

parties,  "the  entire  instrument,  tlie  liabendum  as  well  as  the  premises,  is  to  be 
considered."    Barnett  v.  Barnett,  104  Cal.  298,  37  Pac.  1049. 

128  George  v.  Bates,  90  Va.  839,  20  S.  B.  828;  Wilson  v.  Johnson  (Ind.  Sup.> 
38  N.  E.  38;  Campbell  v.  Johnson,  44  Mo.  247;  Wofford  v.  McKinna,  23  Tex. 
44;    Dwyre  v.  Speer,  8  Tex.  Civ.  App.  88,  27  S.  W.  585. 

130  Mason  v.  White,  11  Barb.  (N.  Y.)  173;  Bosworth  v.  Sturtevant,  2  Cush. 
(Mass.)  392;  Hoban  v.  Cable,  102  Mich.  20(>,  60  N.  W.  4G6;  Eggleston  v.  Brad- 
ford, 10  Ohio,  312;  Travellers  Ins.  Co.  v.  Yount,  98  Ind.  454;  Wells  v.  Hcd- 
denberg  CTex.  Civ.  App.)  30  S.  W.  702;  Gress  Lumber  Co.  v.  Goody,  94  Ga. 
519,  21  S.  E.  217;  Denver,  M.  &  A.  Ry.  Co.  v.  Lockwood,  54  Kan.  580,' 38  Pac 
794. 

181  See  Canedy  v.  Marcy,  13  Gray  (Mass.)  373. 

132  Bybee  v.  Hageman,  GG  111.  519;    Clark  v.  Powers,  45  lU.  283. 

133  Long  V.  Wagoner,  47  Mo.  178;    Stanley  v.  Green,  12  CaL  148. 
13*  Putzel  V.  Van  Brunt,  40  N.  Y.  Super.  Ct.  501. 

18  8  Kimball  v.  Semple.  25  Cal.  449. 
13  0  Martind.  Con  v.  (2d  Ed.)  §  98. 


§§   263-264)  REQUISITES   OF   DEEDS.  421 

would  make  it  Toid  for  uncertainty."^  General  expressions  in  the 
deed  are  controlled  by  more  specific  ones,"*  and  surplusage  is  to  be 
rejected."*  All  presumptions  are  taken  most  strongly  against  the 
grantor,^*"  and  where  the  deed  contains  two  conflicting  descrip- 
tions the  grantee  will,  on  this  principle,  be  permitted  to  elect  under 
which  he  will  hold.^** 

PlaU  and  Maps. 

The  principal  means  employed  to  describe  land  in  conveyances 
are  reference  to  maps  and  plats,  description  by  means  of  monu- 
ments, or  courses  and  distances,  and  description  by  the  amount  of 
land  to  be  conveyed.  Where  land  is  described  by  means  of  refer- 
ence to  a  map  or  a  plat,  the  map  or  plat  referred  to  becomes  a  part 
of  the  deed  for  the  purpose  of  that  conveyance,  and  anything  which 
appears  thereon  may  affect  the  terms  of  the  grant;"'  as,  where 
land  is  conveyed  by  means  of  reference  to  a  plat  which  shows  streets 
as  in  existence  at  certain  places,  the  grantor  may  be  estopped  by 
such  fact,  and  the  grantee  w^ould  have  a  right  to  have  a  street  as 
located  on  the  plat"'  So,  also,  if  the  land  is  described  by  a  mere 
reference  to  another  deed  in  which  the  land  is  conveyed,  the  effect 
is  the  same  as  when  the  reference  is  to  the  map.^**  When  maps  or 
deeds  are  refen-ed  to  for  purposes  of  description,  they  may  be  identi- 
fied by  parol  evidence.""  The  loss  of  the  map  or  deed  would  not 
make  the  conveyance  in  which  they  are  referred  to  void,  but  the 

187  Anderson  v.  Baughman,  7  Mich.  69;  City  of  Alton  v.  Illinois  Transp. 
Co.,  12  111.  38;    Gano  v.  Aldridge,  27  Ind.  294. 

138  Hannibal  &  St.  J.  R.  Co.  v.  Green,  68  Mo.  169;  Wade  v.  Deray,  50  Cal. 
876. 

13  9  Jackson  v.  Clark,  7  Johns.  (N.  Y.)  223;    Kruse  v.  Wilson,  79  111.  235. 

1*0  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet  420,  589;  Cocheco 
Manuf  g  Co.  v.  Whlttier,  10  N.  H.  305. 

1*1  Armstrong  v.  Mudd,  10  B.  Mon.  (Ky.)  144. 

1*2  Dolde  V.  Vodicka,  49  Mo.  100;  Masterson  v.  Munro,  105  Cal.  431,  38  Pac. 
1106. 

1*3  See  ante,  p.  859. 

1**  Mardis  v.  Meyers,  8  Tex.  Civ.  App.  542,  28  S.  W.  693;  Wuestcott  v. 
Seymour,  22  N.  J.  Eq.  66;  Deacons  of  Cong.  Church  In  Auburn  v.  Walker, 
124  Mass.  69.  But  see  Lovejoy  v.  Lovett,  Id.  270.  Land  may  be  described  as 
bounded  by  land  conveyed  In  another  deed.  Probett  v.  Jenkln^on  (Mich.) 
63  N.  W.  648. 

1*6  McCullough  v.  Wall,  4  Rich.  (S.  C.)  68;    Penry  v.  Richards,  52  Cal.  49G. 


422  TITLE.  (Ch.  16 

contents  of  the  lost  instrument  could  be  established  by  other  evi- 
dence.*** 

Monuments. 

Monuments  are  permanent  landmarks,  established  for  the  pur- 
pose of  indicating  boundaries.**^  They  may  be  either  natural  or 
artificial.***  Examples  of  natural  monuments  are  trees,  rocks, 
rivers,  etc.  Artificial  monuments  are  anything  which  may  be 
treated  by  the  parties  as  such.  In  describing  lands  by  means  of 
monuments,  the  monuments  themselves  must  be  identified,  and  it  is 
not  sufiBcient  to  refer  to  them  as  "a  certain  tree"  or  "stake."  **° 
Where  land  is  conveyed  by  descriptions  referring  to  highways  or 
nonnavigable  rivers  for  boundaries,  it  is  taken  that  the  center  of 
the  highway  or  the  river  is  intended.*'"  When  points  on  the  bank 
of  the  river  or  side  of  the  road  are  named  in  describing  the  land  con- 
veyed, the  cases  are  in  conflict  as  to  whether  the  boundary  is  in  the 
center  or  at  the  side  of  the.  highway  or  river.*''*  An  intention 
may,  in  any  case,  be  expressed  that  the  grantee  shall  not  take  to  the 
center,  as  where  the  land  is  described  as  bounding  on  "the  side  or 
banks"  of  the  highway  or  river.  In  such  case  the  line  would  not 
be  in  the  center,  but  on  the  edge.*'*     Where  no  such  intention  is 

14  8  New  Hampshire  Land  Co.  v.  Tilton,  19  Fed.  73. 

1*7  Black,  Law  Diet.  "Monuments." 

14  8  The  monuments  may  be  erected  by  the  parties  after  the  conveyanoe  Is 
executed.  Makepeace  v.  Bancroft,  12  Mass.  469;  Lemed  v.  Morrill,  2  N.  H. 
197. 

149  Drew  V.  Swift,  46  N.  Y.  204;   Bagley  v.  Morrill,  46  Vt.  94. 

1  BO  Boston  V.  Richardson,  13  Allen  (Mass.)  146;  Highways  Berrldge  v. 
Ward,  10  C.  B.  (N.  S.)  400;  Champlin  v.  Pendleton,  13  Conn.  23;  Paul  v. 
Carver,  26  Pa.  St.  223;  Fisher  v.  Smith,  9  Gray  (Mass.)  441;  Cox  v.  Freedley, 
33  Pa.  St.  124;  Bissell  v.  Railroad  Co.,  23  N.  Y.  61;  White  v.  Godfrey,  97 
Mass.  472;  Dodd  v.  Witt,  139  Mass.  63,  29  N.  E.  475.  But  see  Leigh  v.  Jack, 
5  Exch.  Div.  264;  Sibley  v.  Holden,  10  Pick.  (Mass.)  249;  White's  Bank  of 
Buffalo  V.  Nichols,  64  N.  Y.  65;  Kings  Co.  Fire  Ins.  Co.  v.  Stevens,  87  N.  Y. 
287;    In  re  Robbins,  34  Minn.  99,  24  N.  W.  356. 

151  1  Dembitz,  Land  Tit.  72.  And  see  Luce  v.  Carley,  24  Wend.  (N.  Y.)  451; 
Sleeper  v.  Laconla,  60  N.  H.  201;  Arnold  v.  Elmore,  16  Wis.  509;  Watson 
V.  Peters,  26  Mich.  508.  And,  as  to  artificial  streams,  see  Warner  v.  South- 
worth,  6  Conn.  471;  Agawam  Canal  Co.  v.  Edwards,  36  Conn.  476.  Cf.  Buck 
V.  Squiers,  22  Vt.  484. 

iB2Halsey  v.  McCormick,  13  N.  Y.  296;  Child  v.  Stair,  4  Hill  (N.  Y.)  369, 


§§    263-264)  REQUISITES    OP   DEEDS.  423 

expressed,  but  the  usual  case  of  the  boundary  line  being  in  the 
middle  of  the  road  or  stream  exists,  the  grantee  of  the  land  owns 
to  the  boundary  line  in  the  center,  subject  to  the  easement  of  the 
highway  or  stream.^"^'  The  cases  are  in  great  confusion  on  the 
question  of  where  the  boundary  line  is  when  the  land  conveyed  is 
bounded  by  a  navigable  river.  Three  different  rules  exist  in  the 
different  states.  In  some  states  the  land  of  the  riparian  proprietor 
is  bounded  by  high-water  mark,^°*  in  other  states  by  low-water 
mark,^^"^  and  in  still  others  he  owns  to  the  center  of  the  stream/ °' 
While  the  body  of  the  Great  Lakes  is  never  subjected  to  riparian 
ownership,  the  ponds  and  smaller  lakes  from  half  a  mile  to  three 
miles  in  width  which  are  found  in  the  Northwest  have  caused  much 
difficulty.  The  same  conflict  exists  as  in  the  case  of  navigable  riv- 
ers.^°^  In  any  case,  if  a  natural  body  of  water  has  been  raised  by 
artificial  means,  the  boundary  lines  continue  as  before  the 
change.^*' 

reversing  20  Wend.  (N.  Y.)  149;  Murphy  v.  Copeland,  58  Iowa,  409,  10  N.  W. 
786;  Dunlap  v.  Stetson,  4  Mason,  349,  Fed.  Cas.  No.  4,164.  See  LowoU  v. 
Robinson,  16  Me.  357. 

153  Town  of  Old  Town  v.  Dooley,  81  111.  255;  Fisher  v.  Rochester.  6  L.ius. 
(N.  T-.)  225;  West  Covington  v.  Freking,  8  Bush  (Ky.)  121.  And  see  ante, 
pp.  361,  368. 

154  Barney  v.  Keokuk,  94  U.  S.  324;  McManus  v.  Cax-michael,  3  Iowa,  1; 
Wood  V.  Fowler,  26  Kan.  682;  Mayor,  etc.,  of  City  of  Mobile  v.  Eslava.  16 
Pet.  234. 

156  Union  Depot  Street-Railway  &  Ti-ansfer  Co.  of  Stillwater  v.  Brunswick, 
31  Minn.  297,  17  N.  W.  626;  People  v.  Canal  Appraisers,  33  N.  Y.  461;  Monou- 
gahela  Bridge  Co.  v.  Kirk,  46  Pa.  St.  112;  Wood  v.  Appal,  63  Pa.  St.  210; 
Lux  V.  Haggin,  69  Cal.  255,  10  Pac.  674.  And  see  Haudly's  Lessee  v.  Anthony, 
5  Wheat.  375;   Booth  v.  Shepherd,  8  Ohio  St.  247. 

156  Arnold  v.  Elmore,  16  Wis.  509;  Jones  v.  Pettlbone,  2  Wis.  308;  Fuller 
V.  Dauphin,  124  111.  542,  16  N.  E.  917;  Fletcher  v.  Boom  Co.,  51  Midi.  277, 
16  N.  W.  645;  Webber  v.  Boom  Co.,  62  Mich.  626,  30  N.  W.  469;  Morgan  v. 
Readtng,  3  Smedes  &  M.  Oliss.)  366;  Gavit's  Adm'rs  v.  Chambers,  3  Ohio,  4!)0. 

157  1  Dembitz,  Land  Tit.  67;  Jefferis  v.  Land  Co.,  134  U.  S.  178,  10  Sup.  Ct. 
518;  Hardin  v.  Jordan,  140  U.  S.  371,  11  Sup.  Ct.  808,  838;  Clute  v.  Fisher, 
65  Mich.  48,  31  N.  W.  614;  Lamprey  v.  State,  52  :Minn.  181,  53  N.  W.  1139; 
Trustees  of  Schools  v.  Schroll,  120  111.  509,  12  N.  E.  243;  Cortelyou  v.  Van 
Brundt,  2  Johns.  (N.  Y.)  357. 

168  Paine  v.  Woods,  108  Alass.  160.    But  see  Bradley  v.  Rice,  13  Me.  198. 


424  TITLE.  (Ch.  16 

Courses  and  Distances. 

Land  is  said  to  be  described  by  courses  and  distances  when  an 
identified  starting  point  is  given,  and  the  boundaries  are  traced 
from  that  point  as  so  many  rods  or  feet  in  a  certain  direction, 
etc.^"  When  such  descriptions  are  given,  the  lines  are  always  to 
bo  taken  as  straight  lineSj^o"  and  directions  expressed  as  "north- 
ward," "eastward,"  etc.,  mean  due  north  and  due  east.^"  When 
monuments  aud  courses  and  distances  are  both  given,  the  monu- 
ments control,  and  the  distances  must  be  lengthened  or  shorten- 
ed,^ «=  though  the  courses  and  distances  will  control  where  such  an 
intention  clearly  appears  in  the  deed.^"  When  lands  are  described 
according  to  the  congressional  survey,  and  the  corners — that  is,  the 
monuments— have  been  lost,  the  courses  and  distances,  as  they  ap- 
pear on  the  maps  and  field  notes  of  the  surveyor  general,  will  con- 
trol. But  a  difficulty  arises  from  the  fact  that  the  chains  used  in 
making  the  surveys  were  often  stretched  by  use,  and  so  more  land 
will  be  included  in  the  description  than  would  be  indicated  by  the 
courses  and  distances.  In  the  federal  courts,  and  in  some  of  the 
states,  it  is  held,  in  conformity  with  the  United  States  statutes,^ «* 
that  the  lost  corner  shall  be  established  by  locating  it  a  proportion- 
ate distance  from  the  nearest  known  corners.  In  this  way  the 
surplus  land  is  divided  among  the  several  owners.^*"*  In  some 
states,  however,  a  different  rule  prevails,  and  the  lost  corner  is 
located  by  measuring  the  distance  which  it  ought,  by  an  accurate 
survey,  to  be  from  the  eastern  corner  of  the  township.  By  this 
rule  the  surplus  land  all  goes  to  the  owners  on  the  western  side.^°* 

189  As  to  the  use  of  the  words  "more  or  less"  In  giving  courses  and  dis- 
tances, see  Blaney  v.  Rice,  20  Pick.  (Mass.)  G2;  HoweU  v.  Merrill,  30  Mich. 
283;   Williamson  v.  Hall,  G2  Mo.  405. 

i«o  Campbell  v.  Branch,  4  Jones  (N.  C.)  313. 

161  Jackson  v.  Reeves,  3  Caines  (N.  Y.)  295. 

1C2  Preston  v.  Bowmar,  0  Wheat.  580;  Bowman  v.  Farmer,  8  N.  H.  402; 
Knowles  v.  Toothaker,  58  Me.  172;  White  v.  Williams,  48  N.  Y.  344;  Miles' 
V.  Barrows,  122  Mass.  579.    Cf.  Hall  v.  Eaton,  139  Mass.  217,  29  N.  E.  660. 

183  niglnbotham  v.  Stoddard,  72  N.  Y.  94;  Buffalo,  N.  Y.  &  E.  R.'co.  v. 
Stigeler,  61  N.  Y.  348.    Aud  see  Hall  v,  Eaton,  139  Mass.  217,  29  N.  E.  660. 

16*  Rev.  St.  U.  S.  §  2396. 

16  5  Jones  v.  Kimble,  19  Wis.  429;    Moreland  v.  Page,  2  Iowa,  139. 

i«6  Major  V.  Watson,  73  Mo.  665;    Vaughn  v.  Tate,  64  Mo.  491-  Knight  v 
Elliott,  57  Mo.  317. 


f§   263-264)  REQUISITES   OF   DEEDS.  425 

Quantity. 

When  the  quantity  of  land  to  be  conveyed  is  given  in  the  deed, 
it  will  not  control  either  monuments  or  courses  or  distances/"'' 
though  it  may  aid  a  description  otherwise  defective,  and  quantity 
may  be  made  to  control  by  express  words.^*®  In  the  absence  of 
such  words,  the  quantity  given  in  a  deed  will  have  no  effect  unless 
there  is  a  covenant  as  to  the  amount.  When  the  quantity  is  given, 
and  the  words  "more  or  less"  are  added,  no  more,  is  meant  than 
what  the  law  would  imply,  namely,  that  the  grantee  takes  the  risk 
as  to  the  amount.^  °®  The  addition  of  the  words  "more  or  less"  will 
not  prevent  an  action  for  fraud  when  there  has  been  a  misrepre- 
sentation as  to  the  amount^^** 

Appurtenances. 

The  old  form  of  a  deed  adds,  after  the  description  of  the  lands  or 
tenements  conveyed,  words  like  the  following:  "With  all  the  priv- 
ileges and  appurtenances  thereto  belonging  or  in  any  way  apper- 
taining," or,  simply,  'With  the  appurtenances."  It  is  doubtful 
whether  these  general  words  in  any  case  enlarge  the  effect  of  the 
deeds.^^*  The  primary  meaning  of  "appurtenances"  is  the  ease- 
ments and  other  incorporeal  hereditaments  enjoyed  with  the  land, 
such  as  rights  of  way,  water  courses,  rights  to  light  and  air,  etc. 
But  it  seems  that  whatever  easements  or  hereditaments  will  pass 
under  the  general  description  of  "privileges  and  appurtenances" 
will  pass  without  them  as  mere  incidents  to  the  land,  unless  the  in- 
tention to  reserve  such  right,  and  to  detach  it  from  the  land,  is  ap- 
parent^'^'^  But  it  is  a  general  principle  that  "land  cannot  pass  as 
an  appurtenance  to  land,"  and  it  has  been  said  that  even  the  neces- 
sity of  enjoyment  cannot  make  one  parcel  of  land  pass  as  an  ap- 

167  Mann  v.  Pearson,  2  Johns.  (N.  Y.)  37;  Pernam  r.  Wead,  6  Mass.  131; 
Emery  v.  Fowler,  38  Me.  99. 

16  8  Moran  v.  Lezotte,  54  Mich.  83,  19  N.  W.  757;  Davis  v.  Hess,  103  Mo. 
81,  15  S.  W.  324. 

169  Williamson  v.  Hall,  62  Mo.  405. 

170  McConn  v.  Delany,  3  Bibb  (Ky.)  46. 

171  See  Crosby  v.  Parker,  4  Mass,  110;  Nicholas  v.  Chamberlain,  Cro.  Jac. 
121. 

172  1  Dembitz,  Land  Tit.  55. 


426  TITLE.  (Ch.  1& 

purtenance  to  another.***  But  the  sale  of  a  house,  mill,  factory, 
barn,  etc.,  will  carry  with  it  not  only  the  soil  actually  covered  by 
the  building,  but  the  "curtilage";  that  is,  the  yard  and  garden  that 
are  habitually  occupied  with  a  dwelling  house,  and  certain  small 
parcels,  with  or  without  outbuildings,  without  which  the  mill,  fac- 
tory, barn,  etc.,  cannot  be  enjoyed,  or  which  are  left  open  between 
it  and  the  highway.***  And  where  the  word  "appurtenances"  is- 
added  to  the  designation  of  a  dwelling  house  or  other  building,  it 
is  not  a  mere  empty  phrase,  but  means  what  is  habitually  occupied 
with  it  even  though  it  be  an  unfenced  lot.*" 

265.  EXECUTION  OF  THE  WRITING— A  valid  deed 
must  be  executed  in  -writing,  subject  to  the  folio-w- 
ing rules: 

(a)  No  consideration  is  necessary  except  for  bargain  and 

sale  deeds  and  covenants  to  stand  seised  (p.  427). 

(b)  No  date  is  necessary  (p.  428). 

(c)  All  blanks  must  be   filled  before   delivery,   except 

-where  the  la-w  implies  -what  is  to  be  inserted,  or, 
in  some  states,  -where  parol  authority  has  been 
given  to  fill  them  (p.  42S). 

(d)  No  alterations  can  be  made  after  delivery  (p.  428). 

(e)  The   grantor  is  presumed  to   know  the  contents  of 

his  deed  (p.  429). 

(f)  The  deed  must  be  sealed,  in  some  states  (p.  429). 

(g)  The  deed  must  be  signed  by  the  grantor,  or  by  some 

one  authorized  to  sign  for  him.  Indentures  are 
signed  by  the  grantee  also  (p.  430). 

178  Armstrong  v.  Dubois,  90  N.  Y.  95;  Ogden  v,  Jennings,  62  N.  T.  526; 
Humphreys  v.  McKissock,  140  U.  S.  304,  11  Sup.  Ct.  779;  Wilson  v.  Beckwith, 
117  Mo.  61,  22  S.  W.  639.  A  tree  in  tlie  adjoining  street  will  pass  as  an  ap- 
purtenance.   Gorham  v.  Electric  Co.  (Co.  Ct.)  29  N.  Y.  Supp.  1094, 

1T4  Allen  V.  Scott,  21  Pick.  (Mass.)  25;  Whitney  v.  Olney,  3  Mason,  280,  Fed. 
Gas.  No.  17,595.  For  the  right  to  use  a  drain  as  appurtenant  to  a  house,  see 
Thayer  v.  Payne,  2  Cush.  (Mass.)  327;  Johnson  v.  Jordan,  2  Mete.  (Mass.)  234. 

iTsAmmldown  v.  Ball,  8  Allen  (Mass.)  293;  Cunningham  v.  Webb,  69  Me. 
D2.    But  see  Leonard  v.  White,  7  Mass.  6;    Archer  v.  Bennett,  1  Lev.  131. 


§    265)  REQUISITES    OF   DEEDS.  427 

What  Writi/ng  Necessary. 

Deeds  are  to  be  written  on  paper  or  parchment,*^'  and  should  be 
written  with  ink,  though  possibly  a  deed  written  with  a  pencil 
would  be  valid."^  The  chief  desideratum  is  durability.  Part  of 
the  deed  may  be  written  and  part  printed.  When  there  is  any  con- 
flict between  the  written  and  the  printed  parts,  the  written  word* 
will  control. ^^" 

Consideration. 

No  consideration  is  necessary  for  modern  statutory  convey- 
ances."' Bargain  and  sale  deeds,  however,  require,  as  we  have 
seen/*"  a  consideration  to  make  them  valid,  though  the  require- 
ment has  been  greatly  relaxed  in  modem  times.  For  a  covenant 
to  stand  seised  a  good  consideration  is  suflQcient.^'^  Between  the 
parties  to  a  deed  it  is  valid  without  the  payment  of  any  considera- 
tion/** but  it  may  not  be  so  as  to  purchasers  and  creditors  of  the 
grantor  who  attack  its  validity,  claiming  that  it  is  in  fraud  of  their 
rights.^*'  Where  the  receipt  of  a  consideration  is  acknowledged 
in  a  deed,  this  may  be  rebutted  so  far  as  it  operates  as  a  receipt;  ^'* 
though  the  amount  so  stated  is  prima  facie  the  amount  paid  for  the 
conveyance  of  the  land.^*°  When  the  receipt  of  consideration  is 
thus  acknowledged,  it  may  operate  as  a  waiver  of  the  vendoi*'s  lien 
as  to  subsequent  purchasers.^** 

iTfl  2  Bl.  Comm.  297. 

177  1  Devi.  Deeds,  §  136.    See  Merrltt  v.  Clason,  12  Johns,  (N.  T.)  102. 
i7  8Martind.  Conv.  (2d  Ed.)  §  15. 

17  9  Cunningham  v.  Freeborn,  11  Wend.  (N.  Y.)  241,  248;  Rogers  v.  Hill- 
house,  3  Conn.  398. 

180  Ante,  p.  410. 

181  Ante,  p.  411. 

182  Brown  v.  Brown  (S.  C.)  22  S.  E.  412. 

183  De  Lancey  v.  Stearns,  66  N.  Y.  157;  Keys  v.  Test,  33  111.  317;  Palmer  r. 
Williams,  24  Mich.  328;    Glidden  v.  Hunt,  24  Pick.  (Mass.)  221. 

184  McCrea  v.  Purmort,  16  Wend.  (N.  Y.)  460;  Bullard  v.  Briggs,  7  Pick. 
(Mass.)  537;  Wilkinson  v.  Scott,  17  Mass.  257;  Goodspeed  v.  Fuller,  46  Me. 
141.  And  see  Mildmay's  Case,  1  Coke,  175;  Gale  v.  Williamson,  8  Mees.  & 
W.  405. 

186  Clements  v.  Landrum,  26  Ga.  401.    And  cf.  Wilkes  v.  Leuson,  Dyer,. 
169a;    Prafton  v.  Hawes,  102  Mass.  533. 
186  Jackson  v.  M'Chesney,  7  Cow.  (N.  Y.)  360;  per  Sutherland,  J. 


^28  TITLE.  (Ch.  16 

Dat«. 

A  date  Is  not  strictly  necessary  for  the  validity  of  a  deed,*'*  and, 
when  used,  may  be  placed  in  any  part  of  the  instrument.  A  deed 
takes  effect  from  the  time  of  delivery,  and  prima  facie  the  date 
given  in  the  instrument  is  the  date  of  delivery,"^  though  this  pre- 
sumption may  be  rebutted.^** 
Filling  Blanks. 

When  blanks  are  left  in  the  deed,  the  deed  is  of  no  effect,  unless 
it  can  be  operative  without  the  omitted  words;  and  if  the  blanks 
are  filled  after  delivery  the  deed  is  void.""  There  is  an  exception 
to  this,  however,  in  the  case  where  the  blanks  which  are  filled  are 
only  such  as  would  be  implied  by  law.*"*  Some  cases  hold  that  the 
grantee's  name  which  has  been  omitted  may  be  inserted  according 
to  the  intention  of  the  parties.*'*  So,  also,  a  deed  may  be  delivered 
accompanied  by  a  parol  power  to  fill  blanks,*"  though  the  contrary 
is  held  by  some  courts.*'* 
Alterations. 

A  deed  must  be  completely  written  when  it  is  delivered,  and  for 
this  reason  any  alterations  or  interlineations  in  the  instrument 
must  be  made  before  delivery,*"  though  they  may  be  added  after 
the  deed  has  been  signed.*'*  An  alteration  by  a  stranger  to  the 
instrument  does  not  affect  the  validity  of  a  deed,*"   and  as  to  the 

i«T  Thompson  v.  Thompson,  9  Ind.  323. 

i««  Lake  Erie  &  W.  R.  Co.  v.  Whitham,  155  III.  514,  40  N.  E.  1014;  Ella- 
worth  V.  Railroad  Co.,  34  N.  J.  Law,  93;  Ford  v.  Gregory's  Heirs,  10  B.  Mon. 
(Ky.)  175. 

188  Fash  V.  Blalie,  44  111.  302;  Blanchard  v.  Tyler,  12  Mich.  339;  Henderaon 
T.  Baltimore,  8  Md.  353;  BUynn  v.  Flynn  (N.  J.  Ch.)  31  Atl.  30. 

190  Ingram  v.  Little,  14  Ga.  173. 

191  U.  S.  V.  Nelson,  2  Brock.  G4,  Fed.  Cas.  No.  15,862,  per  Marshal,  C.  J. 

192  Duncan  v.  Hodges,  4  McCord  (S.  C.)  239;  Devin  v.  Himer,  29  Iowa,  300. 
But  see  Chauncey  v.  Arnold,  24  N.  Y.  330;    Drury  v.  Foster,  2  Wall.  24. 

193  Schintz  V.  McManamy,  33  Wis.  299;  Clark  v.  Allen,  34  Iowa,  190;  Pence 
V.  Arbuckle,  22  Minn.  417;  Otis  v.  Browning,  59  Mo.  App.  326  (grantee's 
name). 

194  Though  an  element  of  fraud  is  generally  present.  Upton  v.  Archer,  41 
Oal.  85;    Cooper  v.  Page,  62  Me.  192. 

195  People  V.  Organ,  27  111.  26;    Wallace  v.  Harmstad,  15  Pa.  St.  462. 
198  Stiles  V.  Probst,  69  III.  382;    Penny  v.  Corwithe,  18  Johns.  (N.  Y.)  499. 
19T  Robertson  v.  Hay,  91  Pa.  St.  242. 


§    265)  REQUISITES    OF    DEEDS.  429 

effect  of  such  alterations  by  the  grantee  the  cases  are  conflicting. 
Some  courts  hold  that  the  only  effect  is  on  the  remedy, — that  is,  that 
the  grantee  cannot  bring  snit  on  the  deed;^°®  while  other  courts 
hold  that  the  validity  of  the  deed  is  affected  only  as  far  as  it  is  to 
be  used  in  evidence.^®®  Where  alterations  or  interlineations  are 
present  in  a  deed,  the  presumption  is  that  they  were  made  before 
the  deed  was  delivered,^""  though  there  are  cases  holding  the  con- 
trary.^°^ 
Reading. 

A  painty  to  a  deed,  who  can  read,  is  conclusively  presumed  to  know 
the  contents  of  the  instrument,  though  he  did  not  actually  read  it 
before  it  was  executed.^"^  If  the  grantor  is  blind,  illitei*ate,  or  for 
any  other  reason  unable  to  read,  the  deed  must  be  read  to  him,  if 
he  requests  it,  and  an  incorrect  reading  will  invalidate  the  deed.^°' 
Sealing. 

At  common  law  a  seal  was  necessary  in  the  execution  of  a  valid 
deed,^°*  but  in  many  states  this  requirement  has  been  abolished.^"' 
A  seal  is  defined  to  be  "an  impression  on  wax  or  wafer  or  some  other 
tenacious  substance  capable  of  being  impressed."  *°'  But  a  seal 
stamped  on  paper  has  been  held  good.*"^     In  many  states  a  seal 

188  Herrick  v.  Malin,  22  Wend.  (N.  Y.)  388;  Waring  v.  Smyth,  2  Barb.  Ch. 
(N.  y.)  133;    Johnson  v.  Moore,  33  Kan.  90,  5  Pac.  406. 

189  Hatch  V.  Hatch.  9  Mass.  307. 

aooHeiTick  v.  Malin,  22  Wend.  (N.  Y.)  388;  Holton  v.  Kemp,  81  Mo.  661; 
Van  Horn  v.  Bell,  11  Iowa,  465. 

201  Montag  v.  Linn,  23  111.  503. 

202  School  Committee  v.  Kesler,  67  N.  C.  443;  Kimball  v.  Eaton,  8  N.  H.  391. 
20  3  Jackson  v.  Hayner,  12  Johns.  (N.  Y.)  469;    Morrison  v.  Morrison,  27  Grat 

(WfL)  190;  Lyons  v.  Van  Riper.  26  N.  J.  Eq.  337. 

204  Davis  V.  Brandon,  1  How.  (Miss.)  154;  Grandin  v.  Hernandez,  29  Hnn, 
S99;  Le  Franc  v.  Richmond,  5  Sawy.  603,  Fed,  Gas.  No.  8,209.  But  see  Moss 
T.  Anderson,  7  Mo.  337. 

20  5  1  stim.  Am.  St.  Law,  §§  421,  1564.  Such  statutes  are  not  retroactive. 
Wisdom  V.  Reeves  (Ala.)  18  South.  13. 

200  Warren  v.  Lynch,  5  Johns.  (N.  Y.)  239;  Tasker  v.  Bartlett,  5  Gush. 
(Mass.)  359,  364;    Bradford  v.  Randall,  5  Pick.  (Mass.)  496. 

207  Pierce  v.  Indscth,  lOG  U.  S.  546,  1  Sup.  Ct.  418;  Pillow  v.  Roberts,  13- 
How.  •9E73.  But  see  Farmers'  &  Manufacturers'  Bank  v.  Haight,  3  Hill  (N. 
Y.)  493.  The  printed  device  "[L.  S.]"  has  been  held  sxifficient  Williams  v. 
Starr,  5  Wis.  534,  549. 


430  TITLE.  (Ch.  16 

may  be  supplied  by  a  mere  scroll,  made  with  the  pen.*"*  In  such 
case  the  instrmnent  must  declare  that  a  seal  is  attached.'^"  Cor- 
porations usually  have  seals  of  their  own,  though  they  may  adopt 
any  other  in  executing  a  deed.^^^  The  seal  of  a  corporation  can 
only  be  attached  by  some  one  having  authority.^^^  Where  several 
persons  execute  the  same  deed,  they  may  all  use  one  seal.-^^ 
Signing. 

At  common  law  it  was  not  necessary  that  a  deed  be  signed,  though 
this  is  now  required  by  the  statute  of  frauds.-^*  Where  the  statute 
requires  the  deed  to  be  subscribed,  the  signature  must  be  written 
at  the  end;  but,  in  the  absence  of  such  provision,  the  signing  may 
be  at  any  other  place.""  If  the  party  signing  the  deed  is  unable  to 
write,  he  may  sign  it  by  a  mark,  and  this  would  probably  be  true 
even  though  he  could  write.*^"  The  name  of  the  grantor  may  be 
written  by  another  for  him,  in  his  presence;  ^^^  though,  if  the 
grantor  is  absent,  the  power  to.  sign  his  name  must  be  in  writing.^  ^^ 
TVTiere  a  deed  is  signed  by  another  for  the  grantor  without  his  au- 
thority, he  may  adopt  the  signature  as  his  own,  and  ratify  the  ex 
ecution."®  A  deed  by  a  corporation  is  to  be  signed  in  the  cor- 
porate nama**' 

2o»  1  sum.  Am.  St  Law,  §  1565;  CJosner  v.  McCrum  (W.  Va.)  21  S.  E.  739. 
But  see  Warren  v.  Lynch,  5  Johns.  (N.  Y.)  239;  Perrlne  v.  Cheeseman,  11  N. 
J.  Law,  174. 

210  Jenkins  v.  Hurt's  Com'rs,  2  Rand.  (Va.)  44G.  An  Instrument  containing 
the  words  "sealed  with  nay  seal,"  but  having  no  seal  on  it,  is  not  a  technical 
deed.    Demhig  v.  Bullitt,  1  Blackf.  (Ind.)  241. 

211  Proprietors  of  Mill  Dam  Foundry  v.  Hovey,  21  Pick.  (Mass.)  417,  428; 
Stebblns  v.  Merritt,  10  Cush.  (Mass.)  27,  34. 

212  See  Jackson  v.  Campbell,  5  Wend.  (N.  Y.)  572. 

213  Yale  V,  Flanders,  4  Wis.  96.   But  see  note  on  seals,  3  Gray,  Gas.  Prop.  624. 

214  1  Devi.  Deeds,  §  231. 

215  1  Dembitz,  Land  Tit.  345. 

21 «  Devereux  v.  McMahon,  108  N.  C.  134,  12  S.  E.  902;  Baker  y,  Dening,  8 
Adol.  &  E.  94. 

217  Conlan  v.  Grace,  36  Minn.  270,  30  N.  W.  880;  Schmitt  v.  Schmitt,  31 
Minn.  106,  16  N.  W.  543. 

2i8McMurtry  v.  Brown,  6  Neb.  368. 

21 »  Bartlett  v.  Drake,  100  Mass.  174;  Mutual  Benefit  Life  Ins.  Co.  v.  Brown. 
30  N.  J.  Eq.  193. 

2  20  Hatch  V.  Barr,  1  Ohio,  390;  Zoller  v.  Ide,  1  Neb.  439.  But  see  Bason  v. 
Mining  Co.,  90  N.  C.  417. 


§    265)  REQUISITES    OF    DEEDS.  431 

Scume — Power  of  Attorney. 

A  power  of  attorney  to  execute  a  deed  is  an  authority  given  a 
person  to  act  in  behalf  of  the  grantor  in  making  a  conveyance  of 
land.  Such  a  person  is  an  attorney  in  fact.  For  the  execution 
of  a  valid  power  of  attorney  the  same  solemnities  are  required  as 
for  the  execution  of  a  deed.^^^  The  power  of  attorney  must  con- 
tain a  description  of  the  premises  to  be  conveyed,-^^  and  in  many 
states  it  must  be  recorded.^^^  Powers  of  attorney  can  be  created 
only  by  persons  who  are  sui  juris.^**  In  some  states,  by  statute,  a 
married  woman  may  release  her  dower  by  power  of  attorney.  In 
other  states  it  is  held  that  a  married  woman  cannot  give  a  power 
of  attorney,  even  though  her  husband  joins  with  her.--®  One  mem- 
ber of  a  firm  cannot  convey  partnership  lands  without  a  power  of 
attorney  from  the  other  members.--®  A  power  of  attorney  may  be 
revoked  at  any  time,  unless  a  consideration  has  been  paid  for  it;  ^-^ 
but  not  if  it  is  coupled  with  an  interest,  in  which  case  the  power 
to  revoke  must  be  expressly  reserved,  or  none  exists.^^^  Death  of 
the  one  executing  a  power  of  attorney  revokes  it  if  it  is  a  mere 
naked  power.  That  is,  one  not  coupled  with  an  interest,  and  pow- 
ers o£  attorney  to  convey  land  are  generally  of  this  kind.^-^  The 
revocation  of  a  power  of  attorney  should  be  recorded  if  the  power 
itself  has  been.^^"  Where  a  power  of  attorney  has  been  given,  the 
authority  cannot  be  delegated  unless  such  delegation  is  authorized 
by  the  power.^^^  A  power  to  several  cannot  be  executed  by  less 
than  all,  in  the  absence  of  a  provision  to  that  effect.^^*     Powers 

221  Van  Ostrand  v.  Reed,  1  Wend.  (N.  Y.)  424;    Goree  v.  Wadswortli,  91  Ala. 

416,  8  Sonth.  712. 
22  2  Stafford  v.  Lick.  13  Cal.  240. 
223  1  stim.  Am.  St.  Law,  §  1624  (10). 
22  4  Dexter  v.  Hall,  15  "Wall.  9. 
22  5  1  Dembitz,  Land  Tit.  403. 
22  6  Frost  V.  Cattle  Co.,  81  Tex.  505,  17  S.  W.  52. 
2  2T  MacGregor  v.  Gardner,  14  Iowa,  326. 

228  Martind.  Conv.  (2d  Ed.)  §  241;    Mansfield  v.  Mansfield,  6  Conn.  559. 

229  Jenkins  v.  Atkins,  1  Humph.  (Tenn.)  294. 
2  30  Morgan  v.  Stell,  5  Bin.  (Pa.)  305. 

231  Loeb  V,  Drakeford,  75  Ala.  464.  And  see  Rogers  v.  Cruger,  7  Johns.  (N. 
¥.)  557. 

232  Cedar  Rapids  &  St  P.  R.  Co.  v.  Stewart,  25  Iowa,  115;  White  v.  David- 
son. S  Md.  109. 


432  TITLE.  (Ch.  16 

of  attorney  are  strictly  construed,*"  and  a  power  to  "sell"  does  not 
give  authority  to  "convey."  ''*  A  power  to  sell  implies  a  sale  for 
cash.*"  WTiere  a  deed  is  executed  by  one  who  has  a  power  of  at- 
torney, it  must  be  in  the  name  of  the  grantor,  and  not  of  the  agent, 
and  the  agent  himself  must  show  that  he  executes  it  for  his  prin- 
cipal, as  by  signing  "A.  [principal]  by  B.  [agent]."  *^'  Some  cases, 
however,  are  less  exacting.  A  deed  executed,  "A.  B.,  Agt.  of  C.  D.," 
lias  been  held  a  good  execution  of  a  deed  in  which  C.  D.  was  the 
grantor.'^^  In  executing  a  deed  by  virtue  of  a  power  of  attorney, 
the  attorney  must  purport  to  bind  the  grantor,  and  not  himself.*'* 

Indentures  and  Deeds  Poll. 

Conveyances  are  either  indentures  or  deeds  poll.  The  former  i» 
an  instrument  executed  and  signed  by  both  the  grantor  and  the 
grantee.  In  its  usual  form,  it  is  executed  in  duplicate.  Original- 
ly the  two  pieces  were  cut  apart  by  an  irregular  line,  which  gave 
the  name  to  this  form  of  deed.  One  part  was  given  to  each  party, 
and  when  the  deeds  were  produced  in  court  the  irregular  margins, 
if  they  fitted,  were  evidence  that  the  instruments  before  the  court 
were  genuine.  This  cutting  of  the  margin  is  no  longer  usual,  and 
an  indenture  means  only  a  deed  executed  by  both  parties.  Con- 
veyances of  this  kind  usually  begin  with  the  words  "This  in- 
denture." *^'  A  deed  poll  on  the  other  hand  is  one  executed  by 
the  grantor  only,  and  binds  the  grantee  by  its  provisions  only  by 
reason  of  his  acceptance  of  it.  A  deed  poll  usually  conmiences 
with  the  words,  '^now  ye  all  men  by  these  presents."  **• 

233  Geiger  v.  BoUes,  1  Thomp.  &  C.  (N.  Y.)  129;    Brantley  v.  Insurance  Co., 
53  Ala.  554. 
23*  Tharp  v.  Brenneman,  41  Iowa,  251;    Force  v.  Dutcher,  18  N.  J.  Eq.  401. 

236  Lumpkin  v.  Wilson,  5  Heisk.  (Tenn.)  555;  Coulter  v.  Trust  Co.,  20  Or. 
469,  26  Pac.  565,  and  27  Pac.  266. 

23  8  Townsend  v.  Hubbard,  4  Hill  (N.  Y.)  351;  Clarke's  Lessee  v.  Courtney,  5 
Pet.  349. 

237  Wilks  V.  Back,  2  East,  142.  And  see  Devlnney  v.  Reynolds,  1  Watts  & 
S.  (Pa.)  328. 

238  Echols  V.  Cheney,  28  Cal.  157;  Fowler  v.  Shearer,  7  Mass.  14;  Bassett 
V.  Hawk,  114  Pa.  SI:.  502,  8  Atl.  18. 

239  Martind.  Conv.  (2d  Ed.)  §  61;  Flnley  v.  Simpson,  22  N.  J.  Law,  311; 
Atlantic  Dock  Co.  v.  Leavitt.  54  N.  Y.  35;  Currie  v.  Donald^  2  Wash.  (Va.) 
58;    Maule  v.  Weaver,  7  Pa.  St.  329. 

««>  Goodwin  v.  GUbert,  9  Mass.  510. 


§    266)  BEQUISITB3    OF    DEEDS.  433 

266.  DELIVERY  AND  ACCEPTANCE— A  deed  does  not 
become  operative  until  it  is  delivered  and  accepted, 
but  the  delivery  may  be  in  escrow. 

The  delivery  which  is  essential  to  the  validity  of  a  deed  is  the  same 
as  that  required  for  the  completion  of  a  contract.^*^  A  deed  does 
not  become  effective  until  delivered,^*^  though  an  actual  delivery  of 
the  paper  is  not  necessary.**'  The  instrument  must  pass  out  of 
the  control  of  the  grantor,^**  and,  as  to  the  effect  of  the  acts  of  the 
parties,  the  intention  governs  in  all  cases.***  If  the  deed  is  taken 
by  the  grantee  without  the  consent  of  the  grantor,  there  is  no  de- 
livery,— as  where  it  is  stolen;  and  the  grantee  cannot  pass  title 
to  a  subsequent  purchaser  **•  unless  the  grantor  is  estopped  by  his 
negligence  from  setting  up  his  title  against  an  innocent  third  per- 
son.^*^  Delivery  may  be  made  to  a  third  person  for  the  grantee.*** 
This  is  the  case  where  future  estates  are  created  in  the  same  in- 
strument with  those  vesting  in  possession  at  once.     The  deed  is 

2*1  See  Clark,  Cont.  73.  A  delivery  obtained  by  fraud  is  ineffectual.  Golden 
v.  Hardesty  (Iowa)  61  N.  W.  913.  And  see  Raymond  v.  Glover  (Cal.)  37  Pac. 
772. 

«42  Mills  V.  Gore,  20  Pick.  (Mass.)  28;  Prutsman  v.  Baker,  30  Wis.  644; 
Johnson  v.  Farley,  45  N.  H.  505;  Paddock  v.  Potter,  67  Vt.  360,  31  Atl.  784; 
Boyd  V.  Slayback,  63  Cal.  493.    Cf.  Exton  v.  Scott,  6  Sim.  31. 

243  Walker  v.  Walker,  42  111.  311;  Dayton  v.  Newman,  19  Pa.  St.  194;  Far- 
rar  v.  Bridges,  5  Humph.  (Tenn.)  411;    Doe  v.  Knight,  5  Barn.  &  C.  671. 

244  Fisher  v.  Hall,  41  N.  Y.  416;  Bank  of  Healdsburg  v.  Bailhacke,  65  Cal. 
327,  4  Pac.  106. 

246  Conlan  v.  Grace,  36  Minn.  276,  30  N.  W.  880;  Hill  v.  McNichol,  80  Me. 
209,  13  Atl.  883.    But  see  HinchlifC  v.  Hinman,  18  Wis.  139. 

246  Tisher  v.  Beckwith,  30  Wis.  55. 

247  Id.    And  see  Gage  v.  Gage,  36  Mich.  229. 

248  Winterbottom  v.  Pattison,  152  111.  334,  38  N.  E.  1050;  Stephens  v.  Hussk. 
54  Pa,  St.  20.  A  deed  may  become  operative  by  being  delivered  to  the  record- 
ing officer,  if  so  intended  by  the  parties.  Davis  v.  Davis  (Iowa)  60  N.  W.  507; 
Cooper  V.  Jackson,  4  Wis.  537;  Stevenson  v.  Kaiser  (Super.  N.  Y.)  29  N.  Y. 
Supp.  1122;  Kemp  v.  Walker,  16  Ohio,  118;  Laughlin  v.  Dock  Co.,  13  C.  C. 
A.  1,  65  Fed.  441.  The  presumption  that  a  deed  which  has  been  recorded  was 
delivered  may  be  rebutted,  for  instance,  by  showing  that  the  grantee  had 
no  knowledge  of  the  existence  of  the  deed.  Union  Mut  Life  Ins.  Co.  v.  Camp- 
bell, 95  111.  268;  Sullivan  v.  Eddy,  154  111.  199,  40  N.  E.  482;  Russ  v.  Stratton, 
11  Misc.  Rep.  565,  32  N.  Y.  Supp.  767. 

BEAIi  PROP.— 28 


434  TITLE.  (Ch.  16 

given  to  the  owner  of  the  particular  estate,  and  he  accepts  it  for 
the  jjrantees  of  the  future  estates.'"  Where  there  are  several 
grantees  in  a  deed  delivery  to  one  is  sufficient,^""  and  delivery  of  a 
deed  in  which  a  corporation  is  granteee  must  be  made  to  some  one 
authorized  to  accept  it  for  the  corporation.^'"  A  deed  retained  for 
security  is  not  delivered  so  as  to  become  effectual."^  So  there  can 
be  no  delivery  of  a  deed  after  the  death  of  the  grantor."'  A  de- 
livery to  a  third  person,  to  be  delivered  to  the  grantee  on  the  death 
of  the  grantor,  is  good.="^*  Where  there  is  a  delivery  to  a  third 
person  for  the  grantee,  the  grantor  must  not  retain  power  to  recall 
the  deed.""  Not  only  is  delivery  necessary  to  the  validity  of  a 
deed,  but  there  must  also  be  an  acceptance  by  the  grantee,"* 
though  acceptance  will  sometimes  be  presumed  from  the  grantee 

149  Folk  V.  Yarn,  9  Rich.  Eq.  (S.  C.)  303. 

»Bo  Shelden  v.  Ei-skine,  78  Mich.  627,  44  N.  W.  146.  But  see  Hannah  v. 
Swarner.  8  Watts  (Pa.)  9. 

«5i  Western  R.  Corp.  v.  Babcock,  6  Mete.  (Mass.)  346. 

262  Gudgen  v.  Besset,  6  El.  &  Bl.  986. 

2  63  Jackson  v.  Leek,  12  Wend.  (N.  Y.)  107.  A  deed  found  among  the  gran- 
tor's papers  after  his  death  is  of  no  effect,  though  It  is  fully  executed  and 
acknowledged,  since  there  must  be  a  delivery  in  the  grantor's  lifetime.  Wig- 
gins V.  Lusk,  12  111.  132;  Miller  v.  Lullman,  81  Mo.  311.  But  see  Oummings 
V.  Glass,  162  Pa.  St.  241,  29  Atl.  848. 

2  64  Ruggles  V.  Lawson,  13  Johns.  (N.  Y.)  285;  Poster  v.  Mansfield,  3  Mete. 
(Mass.)  412;  Miller  v.  Meers,  155  111.  284,  40  N.  E.  577;  Belden  v.  Carter,  4 
Day  (Conn.)  66;  Wheelwright  v.  Wheelwrignc,  2  Mass.  447;  Hathaway  v. 
Payne,  34  N.  Y.  92;  Latham  v.  Udell,  38  Mich.  238;  Stephens  v.  Rinehart,  72 
Pa.  St.  434;  Squires  v.  Summers,  85  Ind.  252;  Dinwiddle  v.  Smith,  141  Ind. 
818,  40  N.  E.  748.  The  grantor  must  not  reserve  power  to  recall  the  deed, 
or  the  delivei-y  is  ineffectual.  Cook  v.  Brown,  34  N.  H.  460;  Baker  v.  Haskell, 
47  N.  H.  479;    Prutsman  v.  Baker,  30  Wis.  644. 

2  56  Maynard  v.  Maynard,  10  Mass.  456.  The  return  or  cancellation  of  a  deed 
after  It  has  become  operative  by  execution  and  delivery  will  not  divest  the 
estate  conveyed,  or  restore  the  grantor  to  his  former  position.  Furguson  v. 
Bond,  39  W.  Va.  561,  20  S.  E.  591;  National  Union  Bldg.  Ass'n  v.  Brewer, 
41  111.  App.  223;  Jackson  v.  Chase,  2  Johns.  (N.  Y.)  84;  Raynor  v.  Wilson,  6 
Hill  (N.  Y.)  469;  Botsford  v.  Morehouse,  4  Conn.  550;  1  Dembitz,  Land  Tit. 
325.  But  see  Albright  v.  Albright,  70  Wis.  532,  36  N.  W.  254;  Com.  v.  Dud- 
ley, 10  Mass.  403;  Holbrook  v.  Tirrell,  9  Pick.  (Mass.)  105;  Hopp  v.  Hopp, 
156  111.  183,  41  N.  E.  39;  Cadxtallader  v.  Lovece  (Tex.  Civ.  App.)  29  S.  W.  666. 

266  Jackson  v.  Phipps,  12  Johns.  (N.  Y.)  418;  Thompson  v.  L^ach,  3  Lev. 
284;    Beardsley  v.  Hilson,  94  Ga.  50,  20  S.  E.  272;    Derry  Bank  v.  Webster, 


I    266)  REQUISITES    OF    DEEDS.  435 

ha\'ing  possession  of  the  deed."'      And  also  there  may  be  a  pre- 
sumption of  acceptance  from  the  beneficial  character  of  the  instru- 
ment,"* though  this  presumption  does  not  obtain  unless  the  grantee 
has  knowledge  of  the  existence  of  the  deed."»     The  presumption 
of  acceptance  may  be  rebutted." °     When  the  actual  delivery  and 
acceptance  of  the  deed  consists  of  a  number  of  connected  acts,  these 
acts  may  all  be  taken  as  having  occurred  together,  and  the  date  of 
the  first  of  them  is  treated  as  the  time  when  the  deed  takes  effect 
and  the  title  passes."^     This  is  known  as  the  doctrine  of  relation. 
When  a  conveyance  is  beneficial  to  the  grantee,  it  is  held  that  a 
father  may  accept  for  an  infant  child,  or  a  husband  for  a  wife."^ 
Until  a  deed  has  been  accepted  by  the  grantee,  it  may  be  recalled, 
though  there  has  been  a  delivery  by  the  grantor.     But  this  is  not 
possible  after  there  has  been  an  acceptance."'      Delivery  and  ac- 
ceptance are  in  each  case  matters  to  be  proved  by  parol  evidence."* 

Delivery  in  Escrow. 

A  deed  may  be  delivered  in  escrow;  that  is,  into  the  keeping  of 
a  third  person  to  be  delivered  to  the  grantee  on  the  performance  of 
some  condition. "'^     When  there  is  a  delivery  in  escrow,  and  the 

44  N.  H.  264;  Johnson  v.  Farley,  45  N.  H.  505;  Hibberd  v.  Smith.  67  Cal. 
547,  4  Pac.  473,  and  8  Pac.  46.  But  see  Wilt  v.  Franklin,  1  Bin.  (Pa.)  502; 
Merrills  V.Swift,  18  Conn.  257.   And  cf.  Moore  v.  Hazleton,  9  Allen  (Mass.)  102.. 

2  57  Tunison  v.  Chamblin,  88  111.  379;    Tuttle  v.  Turner,  28  Tex.  759. 

288  Church  V.  Oilman,  15  Wend.  (N.  Y.)  656;  Jones  v.  Swayze,  42  3f.  f. 
Law,  279;    Stewart  v.  Weed,  11  Ind.  92. 

259  Jaclison  V.  Phipps,  12  Johns.  (N.  Y.)  418;  Younge  v.  Guilbeau,  3  Wall. 
636;  Fisher  v.  Hall,  41  N.  Y.  416.  But  see  Mitchell  v.  Ryan,  3  Ohio  St.  377; 
Myrover  v.  French,  73  N.  C.  609. 

260  Hulick  V.  Scovil,  4  Gilman  (111.)  159;  Stewart  v.  Weed,  11  Ind.  92. 

261  Johnson  v.  Stagg,  2  Johns.  (N.  Y.)  520.  But  the  application  of  thl.s  doc- 
trine will  not  be  permitted  to  work  an  injury  to  third  persons.  Jackson  v. 
Bard,  4  Johns.  (N.  Y.)  230. 

26  2  Co  well  V.  Daggett,  97  Mass.  434;  Bryan  v.  Wash,  7  111.  557.  And  see 
Douglas  V.  West,  140  111.  455,  31  N.  E.  403. 

26S  Warren  v.  Tobey,  32  Mich.  45;  Souverbye  v.  Arden,  1  Johns.  Ch.  (N.  Y.) 
240;    Albert  v.  Burbank,  25  N.  J.  Eq.  404. 

284  Roberts  v.  Jackson,  1  Wend.  (N.  Y.)  478;  Earle's  Adm'rs  t.  Earle,  20 
N.  J.  Law,  347. 

26B  Arnold  v.  Patrick,  6  Paige  (N.  Y.)  310;  Johnson  v.  Branch,  11  Humph. 
(Tenn.)  521;  Loubat  v.  Kipp,  9  Fla.  60.  And  see  Blight  v.  Schenck.  10  Pa, 
St  285;   Wallace  v.  Butts  (Tex.  Civ.  App.)  31  S.  W.  687. 


436  TITLE.  (Ch.  16 

condition  is  porformed,"'  the  deed  becomes  effectual  from  the  time 
of  the  first  delivery,  unless  intervening  rights  have  attached.^'^ 
There  can  be  no  delivery  in  escrow  to  the  grantee  himself,***  nor 
to  his  agent  or  attorney,  unless  the  agent  or  attorney  agrees  to  hold 
in  that  way;  *°*  otherwise,  the  deed  would  take  effect  as  if  no  con- 
dition had  been  attached.^^"  The  deed,  however,  may  be  passed 
through  the  grantee  to  another  person  to  hold  in  escrow.*''^  A 
deed  delivered  in  escrow  is  of  no  effect  until  the  condition  accom- 
panying is  performed,  even  though  it  is  actually  delivered  to  the 
grantee  without  the  performance  of  the  condition  through  the 
wrongful  act  of  the  depositary. '^^^  For  a  valid  delivery  in  escrow 
there  must  be  no  power  in  the  grantor  to  recall  the  deed.^^*  The 
death  of  the  grantor  before  the  second  delivery  does  not  prevent  the 
deed  becoming  effectual  by  the  performance  of  the  condition  and  a 
second  delivery.''^* 

267.  ACKNOWLEDGMENT —A  deed  must  be  acknowl- 
edged by  the  grantor  to  be  Ms  voluntary  act,  be- 
fore some  oflBcer  designated  by  the  statute, 

(a)  To  entitle  it  to  record. 

(b)  To  give  it  validity,  in  some  states. 

To  maJie  an  acknowledgment  the  grantor  goes  before  an  ofiflcer, 
designated  by  statute,  and  declares  that  the  deed  is  a  genuine  one, 

288  See  Johnson  v.  Baker,  4  Bam.  &  Aid.  440. 

2 67  Hall  V.  Harris,  5  Ired.  Eq.  (N.  C.)  303;  Price  v.  Railroad  Co.,  34  111.  13; 
Foster  v.  Mansfield,  3  Mete.  (Mass.)  414;  Ruggles  v.  Lifwson,  13  Johns.  (N. 
Y.)  285;  Stephens  v.  Rinehart,  72  Pa.  St.  434;  Lindley  v.  Groff,  37  Minn. 
338,  34  N.  W.  26. 

288  Whyddon's  Case,  Cro.  Eliz.  520;  Williams  v.  Green,  Id.  884.  See 
Degory  v.  Roe,  1  Leon.  152.     Contra,  Hawksland  v.  Gatchel,  Cro.  Eliz.  835. 

269  Cincinnati,  W.  &  Z.  R.  Co.  v.  llllT,  13  Ohio  St.  235;  Southern  Life  Ins. 
&  Trust  Co.  V.  Cole,  4  Fla.  359;   Watkins  v.  Nash,  L.  R.  20  Eq.  262. 

270  Stevenson  v.  Crapuoll,  114  111.  19,  28  N.  E.  379;  Miller  v.  Fletcher, 
27  Grat.  403. 

2T1  Gilbert  v.  Insurance  Co.,  23  Wend.  (N.  Y.)  43. 

2T2  Everts  v.  Agnes,  6  Wis.  453;  Illinois  Cent.  R.  Co.  v.  McCuUough,  59 
111.  170;  Smith  v.  Bank,  32  Vt.  341.  But  see  Blight  v.  Schencli,  10  Pa.  St. 
285;  Wallace  v.  Harris,  32  Mich.  380. 

27  8  James  v.  Vanderheyden,  1  Paige  (N.  Y.)  385. 

«74  Lindley  v.  Groff,  37  Minn.  338,  34  N.  W.  26. 


§    267)  REQUISITES   OF   DEEDS.  437 

and  his  voluntary  act.  To  this  the  ofiQcer  makes  a  certificate. 
Provisions  for  aclinowledgment  are  purely  statutory,  and  do  not  exist 
at  common  law.  In  some  states  acknowledgment  is  required,  in  the 
absence  of  witnesses  to  the  deed,  to  give  it  any  validity,  while  in 
others  acknowledgment  is  only  for  the  purpose  of  admitting  the 
deed  to  record.^ ^°  In  many  states  it  is  provided  that  a  deed  prop- 
erly acknowledged  may  be  read  in  evidence  without  further  proof 
of  the  genuineness  of  its  execution, ^'^"  and  this  is  true  even  though 
the  deed  has  not  been  recorded.^^^  Other  courts  hold  to  the  con- 
trary, however,  but  admit  the  unacknowledged  deed  as  evidence 
against  the  grantor  and  his  heirs.^^*  In  states  where  an  unac- 
knowledged deed  cannot  be  recorded,  if  such  an  instrument  is  ac- 
tually spread  upon  the  records,  it  does  not  constitute  notice,*^* 
though  it  may  be  actual  notice  to  one  who  has  examined  the  rec- 
QP^  280  2s[o  one  has  power  to  acknowledge  a  deed  except  the 
grantor,  or  one  to  whom  he  has  given  a  power  of  attorney.^  ^^  When 
husband  and  wife  have  joined  in  a  conveyance  of  the  wife's  land, 
both  must  acknowledge  the  deed;  and  so  when  a  wife  joins  in  her 
husband's  deed.^®^  To  release  her  dower  she  must  acknowledge 
the  deed,  and  in  most  states  this  acknowledgment  must  be  separate 
and  apart  from  the  husband.'^^*  An  acknowledgment  may  be  made 
at  any  time  before  the  deed  is  placed  on  record  or  used  in  evi 

27  6  1  Stlm.  Am.  St.  Law,  art.  157.  See  Alt  v.  Stoker,  127  Mo.  466,  30  S.  W. 
132. 

27  6  1  stim.  Am.  St.  Law,  §  1572. 

2T7  Keichline  v.  Keichline,  54  Pa.  St  76. 

27  8  Jackson  v.  Shepard,  2  Johns.  (N.  Y.)  77;  Brown  v.  Manter,  22  N.  H. 
468;  Gibbs  v.  Swift,  12  Gush.  (Mass.)  393.  In  some  states  the  grantor  can 
be  compelled  to  acknowledge  a  deed  executed  and  delivered.  Sullivan  v. 
Chambers,  18  R.  I.  799,  31  Atl.  167. 

279  Blood  V.  Blood,  23  Pick.  (Mass.)  80;  Kerns  v.  Swope,  2  Watts  (Pa.) 
75;  Dussaume  t.  Burnett,  5  Iowa,  95.  Contra,  Reed  v.  Kemp,  16  111.  445; 
Simpson  v.  Mundee,  3  Kan.  181. 

280  Bass  V.  Estill,  50  Miss.  800;  Manaudas  v.  Mann,  14  Or.  450,  13  Pac. 
440. 

281 1  Devi.  Deeds,  §  468.  For  method  of  proving  deed  where  grantor  is 
dead  or  refuses  to  acknowledge  it  see  1  Stim,  Am.  St.  Law,  art  159. 

2  82  Southerland  v.  Hunter,  93  N.  C.  310;    Ferguson  v.  Kingsland,  Id.  337. 

2  88  1  Dembitz,  Land  Tit.  379;  Richmond  v.  Voorhees,  10  Wash.  316,  88 
Pac.  1014;    Chester  v.  Breitling  (Tex.  Civ.  App.)  30  S.  W.  464. 


438  TITLE.  (Ch.  16 

dence.*'*  Certain  officers  are  designated  before  whom  acknowl- 
edgments may  be  taken;  but  if  the  person  who  takes  the  acknowl- 
edgment is  a  de  facto  officer  the  acknowledgment  is  sufficient.^®' 
An  officer  taking  an  acknowledgment  must  not,  however,  be  a  party 
to  the  deed,-*®  though  he  may  be  a  relative  of  one  of  the  parties 
without  invalidating  the  acknowledgment. '^^^  An  acknowledgment 
must,  in  some  states,  show  the  place  where  it  is  taken,*^'  and  the 
certificate  of  acknowledgment  should  also  show  the  official  charac- 
ter of  the  officer  taking  it.^*^  The  certificate  of  acknowledgment 
must,  in  general,  contain  the  name  of  the  grantor,2°°  and  must 
state  the  facts  which  constitute  the  acknowledgment,^^^  and  a  cer- 
tificate that  the  deed  was  "acknowledged"  is  not  sufficient.^^*  The 
signing  of  the  deed  need  not  be  in  the  presence  of  the  officer  who 
takes  the  acknowledgment.  The  officer  is  not  allowed  to  impeach 
liis  certificate.^®'  In  some  states  the  certificate  of  the  officer  is 
prima  facie  evidence  only  of  the  facts  stated  therein.^®*  An  of- 
ficer taking  an  acknowledgment  may  correct  the  certificate  at  any 
time  to  conform  to  the  actual  facts  of  the  acknowledgment.^®'' 

284  Pierce  v.  Brown,  24  Vt,  165;  Johnson  v.  McGehee,  1  Ala.  186.  An 
acknowledgment  bearing  date  earlier  than  the  date  of  the  deed  is  good. 
Gest  V.  Flock,  2  N.  J.  Eq.  108. 

288  Woodruff  V.  McHarry,  56  111.  218;    Brown  v.  Lunt,  37  Me.  423. 

286  Groesbeck  v.  Seeley,  13  :Mich.  329;   Withers  v.  Baird,  7  Watts  (I'a.)  227: 
Wilson  V.  Traer,  20  Iowa,  231. 
2  87  Lynch  v.  Livingston,  6  X.  Y.  422;   Kimball  v.  Johnson,  14  Wis,  074. 
«88  Willard  v.  Cramer,  30  Iowa,  22;    Hardin  v.  Osborne,  GO  111.  93. 

289  Lake  Erie  &  W.  R.  Co.  v.  Whitham,  155  111.  514,  40  N.  E.  1014;  Final 
V.  Backus,  18  Mich.  218;   Johnston's  Lessee  v.  Haines,  2  Ohio,  55. 

2  90  Martind.  Con  v.  (2d  Ed.)  §  259.  But  see  Wilcoxon  v.  Osborn,  77  Mo.  021; 
Dail  V.  Moore,  51  Mo.  589. 

2  91  Carpenter  v.  Dexter,  8  Wall.  513;  Calumet  &  C.  C.  &  D.  Co.  v.  Russell, 
68  111.  426;   Myers  v.  Boyd,  96  Pa.  St.  427. 

292  Gill  V.  Fauntleroy's  Heirs,  8  B.  Mon.  (Ky.)  177;  Flanagan  v.  Young, 
2  Har.  &  McH.  (Md.)  38.    But  see  McCormack  v.  James,  36  Fed.  14. 

293  Central  Bank  v.  Copcland,  18  Md.  305;  Allen  v.  Lenoir,  53  Miss.  321. 
And  see  Kranichfelt  v.  Slattery,  12  Misc.  Rep.  96,  33  N.  Y.  Supp.  27. 

2  9*  Jackson  v.  Schoonmaker,  4  Johns.  (N.  Y.)  161;  Bdgerton  v.  Jones,  10 
Minn.  429  (Gil.  341);  Lennon  v.  White  (Minn.)  63  N.  W.  620;  Hutchison  v. 
Rust,  2  Grat.  (Va.)  394. 

295  Hanson  v.  Cochran,  9  Iloust.  184,  31  Atl.  880;  Jordan  v.  Corey,  2  Ind. 
385.    But  see  Newman  v.  Samuels,  17  Iowa,  528. 


§§    268-269)  REQUISITES    OF    DEEDS.  439 

268.  WITNESSES— In   some  states   one  or   two   disinter- 

ested, witnesses  to  a  deed  are  required  by  statute 

(a)  For  the  validity  of  a  deed,  or, 

(b)  In  the  absence  of  acknowledgment,  to  entitle  it  to 

record. 

At  common  law  no  witnesses  were  necessary  to  the  validity  of  the 
deed."*  But  now,  by  statute,  in  many  states,  they  are  required. 
In  some  states  witnesses  are  necessary  to  the  validity  of  a  deed, 
even  between  the  parties,  while  in  others  they  are  required  only  when 
there  is  no  acknowledgment.^®^  In  some  states  only  one  witness 
is  required,  but  in  more  two  are  necessary.^®*  Some  courts  hold 
that  deeds  not  witnessed  as  required  by  statute  will  support  an  ac- 
tion for  specific  performance.^®^  The  witnesses  required  for  deeds 
are  such  as  are  competent  to  testify.^""  The  witnesses  must  not 
be  interested  in  the  conveyance  at  the  time  they  act  as  witnesses,^ '^ 
though  an  interest  subsequently  acquired  will  not  disqualify 
them.^°-  Where  there  are  several  grantors  of  a  joint  estate,  they 
are  not  competent  witnesses  for  each  other.*"*  The  witnesses  must 
sign  at  the  grantor's  request,*"*  and  are  competent  to  testify  as  to 
his  mental  soundness  at  the  time  the  deed  is  executed.*"" 

269.  REGISTRY — A  deed  must  be  registered  or  recorded 

in  some  public  ofB.ce  provided  by  statute 

(a)  To  give  it  priority  over  other  conveyances. 

(b)  To  give  it  validity,  in  some  states. 

898  2  Bl.  Comm.  307. 

29T  1  stim.  Am.  St.  Law,  §§  1565,  156G.    And  see  Price  v.  Haynes,  37  Mich. 
iS7;    Center  v.  Morrison,  31  Barb.  355. 
29  8  Carson  v.  Thompson,  10  Wash.  295,  38  Pac.  1116. 
299  Day  V.  Adams,  42  Vt  510. 

800  Frink  v.  Pond,  46  N.  H.  125;  Winsted  Sav.  Bank  v.  Spencer,  26  Conn. 
195;   Third  Nat.  Bank  v.  O'Brien,  94  Tenn.  38,  28  S.  W.  293. 

801  Winsted  Sav.  Bank  v.  Spencer,  26  Conn.  195. 
8  02  Carter  v.  Corley,  23  Ala.  612. 

308  Townsend  v.  Downer,  27  Vt.  119. 

804  Pritchard  v.  Palmer,  88  Hun,  412,  34  N.  Y.  Supp.  787;  Tate  v.  Lawrence, 
LI  Heisk.  (Tenn.)  503. 

305  Brand  v.  Brand,  39  How.  Prac.  (N.  Y.)  193.  And  see  generally,  as  to 
statutes  requiring  attestation,  1  Dembitz,  Land  Tit.  348. 


440  TITLE.  (Ch.  16 

Recording  laws,  and  thoir  application  to  deeds  and  other  convey- 
ances, have  already  been  discussed  in  connection  with  mortgages.*"' 

SAME— COVENANTS  FOR  TITLE. 

270.  Covenants  for  title  are  contracts  contained  in  a  con- 
veyance by  which  the  grantor  binds  himself  to  the 
grantee  as  to  certain  facts  in  connection  -with  the 
title  to  the  land  conveyed.  The  usual  covenants 
are: 

(a)  Of  seisin  and  right  to  convey  (p.  442), 

(b)  Against  incumbrances  (p.  444). 

(c)  Of  warranty  and  quiet  enjoyment  (p.  446), 

(d)  For  further  assurance  (p.  449). 

Express  and  Implied  Covenants. 

Covenants  are  contracts,  and  their  form  and  requisites  are  gov- 
erned by  the  law  relating  to  that  subject.'**^  If  the  deed  in  which 
the  covenant  is  contained  is  void,  the  covenant  is  void.*"*  A  cov- 
enant cannot  enlarge  the  estate  conveyed  in  the  instrument  which 
contains  the  covenant,  but  a  covenant  may,  in  some  instances,  op- 
erate in  the  same  way  as  words  of  limitation.^""  Covenants  in 
deeds  are  either  express  or  implied.  The  word  "give"  in  a  com- 
mon-law feoffment  operated  as  a  covenant  of  warranty  during  the 
grantor's  life,  but  was  not  binding  on  his  heirs.*"  It  has  already 
been  seen '"  that  implied  covenants  are  raised  by  the  use  of  the 
words  "grant  and  demise"  in  a  lease.  So  in  the  common-law  ex- 
change of  lands  there  are  implied  covenants  of  warranty  by  each 
party  to  the  conveyance.*^'     Deeds  operating  under  the  statute  of 

«0  8  Ante,  p.  218. 

80  7  Clark,   Cont.  72. 

80  8  Scott  V.  Scott,  70  Pa.  St,  24a 

808  Terrett  v.  Taylor,  9  Cranch,  53;  Shaw  v.  Galbralth,  7  Pa.  St  111; 
Blanchard  v.  Brooks,  12  Pick.  (Mass.)  47;  Winbome  v.  Downing,  105  N.  O. 
20,  10  S.  E.  888. 

810  1   Dembltz,    Land   Tit.  434. 

811  Ante,  p.  138. 

8i2Goimes  v.  Redmon,  14  B.  Mon.  (Ky.)  234.  But  see  Dean  v.  Shelly,  57 
Pa.  St.  427;  WaUvor  v.  Renfro,  26  Tex.  142.  As  to  implied  warranty  in 
partition,  see  ante,  p.  346. 


§    270)  COVENANTS    FOR   TITLE.  441 

uses  raise  no  implied  covenants.'^'  In  some  of  our  states  implied 
covenants  do  not  exist  at  all,  while  in  others  they  are  expressly 
provided  for  by  statute;  for  instance,  in  several  states  it  is  pro- 
vided that  the  words  "grant,  bargain,  and  sell"  raise  implied  cov- 
enants of  seisin,  against  incumbrances,  of  warranty,  and  for  quiet 
enjoyment^'*  If  express  and  implied  covenants  are  both  con- 
tained in.  the  conveyance,  the  express  covenants  control." ^° 

RecJ,  and'  Personal  Covenants. 

Covenants  are  also  classified  as  real  and  personal.'^'  What  such 
covenants  are  in  the  case  of  leases  has  already  been  discussed,'*^ 
and  the  same  principles  apply  to  covenants  for  title;  that  is,  they 
are  real,  and  run  with  the  land,  when  they  affect  its  value,  and  when 
their  performance  is  made  a  charge  upon  the  land.'^*  Personal 
covenants  are  those  which  bind  only  the  covenantor  and  his  per- 
sonal representatives."^* 

Independent  and  Dependent  Covena<ni,s. 

Dependent  covenants  are  those  which  cannot  be  enforced  with- 
out the  performance  by  the  covenantee  of  some  condition  preced- 
ent."^°  Independent  covenants  are  those  which  one  may  enforce 
without  first  performing  the  obligations  to  which  he  is  bound." -^ 

«i8  Allen  Y.  Say  ward,  5  Me.  22T. 

«i*  1  Stlm.  Am.  St  Law,  §  1501. 

815  Burr  V.  Stenton,  43  N.  Y.  462;  Vanderkarr  v.  Vanderkarr,  11  Johns. 
(N.  Y.)  122.    But  see  Funk  v.  Voneida,  11  Serg.  &  R.  (Pa.)  100. 

«i6  See  Clark,  Cont.  545. 

»»7  Ante,  p.  336. 

318  Suydam  v.  Jones,  10  Wend.  (N.  Y.)  180;  Wead  v.  Larkln,  54  HI.  489; 
First  Nat  Bank  v.  Security  Bank  (Minn.)  63  N.  W.  264;  Thomas  v.  Bland, 
91  Ky.  1,  14  S.  W.  955;  Bean  v.  Stoneman,  104  Cal.  49,  37  Pac.  777,  and 
88  Pac.  39;  Allen  v.  Kennedy,  91  Mo.  324,  2  S.  W.  142;  Tillotson  v.  Prichard, 
30  Vt.  94,  14  Atl.  302.  Building  restrictions  run  with  the  land.  Muzzarelll 
r.  Hulshizer,  163  Pa.  St.  643,  30  Atl.  291. 

819  Cole  V.  Hughes,  54  N.  Y.  444;  Indianapolis  Water  Co.  v.  Nutte,  126 
Ind.  373,  26  N.  E.  72;  Brewer  v.  Marshall,  18  N.  J.  Eq.  337;  Lyford  v.  Rail- 
road Co.,  92  Cal.  93,  28  Pac.  103. 

320  Tompkins  v.  Elliot,  5  Wend.  (N.  Y.)  496;  Cunningham  v.  Morrell,  10 
Johns.  (N.  Y.)  203;  Tileston  v.  Newell,  13  Mass.  410;  McCrelish  v.  Churchman, 
4  Rawle  (Pa.)  26. 

821  Goodwin  v.  Holbrook,  4  Wend.  (N.  Y.)  377;  Couch  v.  IngersoU,  2  Pick. 
(Mass.)   300. 


442  TITLE.  (Ch.  16 

Wherever  possible,  courts  will  construe  covenants  to  be  dependent 
rather  than  independent,  and  will  not  permit  a  plaintiff  to  recover 
damages  for  the  breach  of  a  covenant  without  first  showing  perform- 
ance on  his  part  of  all  the  obligations  resting  upon  him.'^* 

271.  COVENANT  OF  SEISIN— A  covenant  of  seisin  is  that 

the  grantor  has  the  very  estate  in  quantity  and  in 
quality  which  he  purports  to  convey. 

272.  WHEN  BROKEN— As  to  when  the  covenant  of  seisin 

may  be  broken,  there  is  a  conflict. 

(a)  In  most  states  it  is  considered  a  covenant  of  lawful 

seisin,  and  can  be  broken  only  at  the  time  of  the 
conveyance. 

(b)  In  some  states  it  is  considered  as  a  covenant  of  in- 

defeasible seisin  and  can  be  broken  at  any  time. 

273.  HOW    BROKEN— The   covenant   of    lawful  seisin  is 

broken  w^hen  the  grantor  is  not  in  lawful  possession 
at  the  time  of  the  conveyance.  The  covenant  of 
indefeasible  seisin  is  broken  by  acts  which  would 
be  a  breach  of  a  covenant  of  warranty. 

A  covenant  of  seisin  is  an  assurance  by  the  grantor  to  the  grantee 
that  there  is  a  right  to  convey  the  estate  which  is  purported  to  be 
conveyed  by  the  deed.^^'  At  common  law  one  who  had  been  dis- 
seised of  his  land  had  no  right  to  convey  it,  though  the  one  who  had 
disseised  him  had.^^*  In  some  of  our  states  a  disseisee  now  has 
power  to  convey.'^' 

^VTien  Broken. 

As  to  when  the  covenant  of  seisin  is  broken  the  cases  are  con- 
flicting, most  courts  holding  that  it  must  be  broken  at  the  time  the 

822  Mecum  v.  Railroad  Co.,  21  111.  533;   Clopton  v.  Bolton,  23  Miss.  78. 

323Pecare  v.  Chouteau's  Adm'r,  13  Mo.  527;  Howell  v.  Richards,  11  East, 
642.  For  words  raising  a  covenant  of  seisin,  see  Wetzel  v.  Richereek  (Ohio) 
40  N.  E.  1004. 

824Thnrman  v.  Cameron,  24  Wend.  (N.  Y.)  87;  Loud  v.  Darling,  7  Allen 
(Mass.)  205. 

82  5  1  Stim.  Am,  St.  Law,  §  1401. 


§§   271-273)  COVENANT   OF   SEISIN.  443 

deed  is  made  if  at  all,'^'  and  others  being  to  the  effect  that  it  may 
be  brolven  at  any  time.^^^  Under  the  former  ruling  the  covenant  is 
construed  as  a  covenant  of  lavi'ful  seisin,  while  the  other  ruling 
would  make  it  the  same  as  one  of  indefeasible  seisin,  which  would 
be  practically  the  same  as  a  covenant  of  warranty.  The  covenant 
may,  of  course,  be  expressly  made  one  of  lawful  seisin  or  one  of  in- 
defeasible seisin.^^*  If  the  covenant  of  seisin  is  construed  as  for 
a  lawful  seisin  only,  it  does  not  run  with  the  land,  and,  if  not  broken 
when  the  conveyance  is  made,  there  can  be  no  subsequent  breach.^ ^* 

How  Brolcen. 

The  covenant  for  lawful  seisin  is  satisfied  if  the  grantor  be  in  the 
possession  of  the  land  at  the  time  of  the  conveyance,  either  himself 
or  by  another  for  him.  Mere  possession  by  the  grantor  under  a 
claim  of  right  is  sufficient,  even  though  his  title  is  not  good  against 
all  the  world.  All  that  is  required  under  a  covenant  of  lawful 
seisin  is  a  seisin  in  fact.*^"  A  covenant  of  seisin  is  broken  when 
the  grantor  does  not  have  immediate  possession  of  the  land,  &fi 
when  his  estate  is  in  remainder,^ ^^  when  there  is  a  deficiency  in  the 
amount  of  land  conveyed,^^-  or  when  the  land  described  in  the  con- 
veyance does  not  exist.*^^  It  is  broken,  also,  if  there  are  fixtures  on 
the  land  which  may  be  removed  by  a  third  person,  who  owns  them.^^* 
If  the  grantor  was  not  sole  seised,  but  a  joint  owner  was  in  posses- 

8  26  Abbott  V.  Allen,  14  Johns.  (N.  Y.)  248;  McCarty  v.  Leggett,  3  Hill  (N. 
Y.)  135;  Wilson  v.  Cochran,  46  Pa.  St.  229;  Baker  v.  Hunt,  40  111.  2G5. 

82T  Schofield  V.  Homestead  Co.,  32  Iowa,  317;  Coleman  v.  Lyman,  42  Ind. 
289;  Backus'  Adm'rs  v.  McCoy,  3  Ohio,  211.  And  see  Dickson  v.  Desire's 
Adm'r,  23  Mo.  151,  This  Is  the  English  doctrine,  Kingdon  v.  Nottle,  4 
.Maule  &  S.  53. 

328  Garfield  v.  Williams,  2  Vt.  327. 

8  29  Greenley  v.  Wilcocks,  2  Johns.  (N.  Y.)  1;  Hamilton  v.  Wilson,  4  Johns. 
(N.  Y.)  72;  Bickford  v.  Page,  2  Mass.  455;  Ogden  v.  Ball,  40  Minn.  94.  41 
N.  W.  453.    But  see  Kimball  v.  Bryant,  25  Minn.  496. 

880  FoUett  V.  Grant,  5  Allen  (Mass.)  175;  Raymond  v.  Raymond,  10  Cnsh. 
(Mass.)  134;    Scott  v.  Twiss,  4  Neb.  133. 

881  Mills  V.  Catlln,  22  Vt,  106.    See  Wilder  v,  Ireland,  8  Jones  (N.  C.)  90. 

882  Martlnd.  Conv.  (2d.  Ed.)  §  165.  But  see  McArthur  v.  Morris,  84  N.  C. 
405. 

8-3  8  Bacon  v,  Lincoln,  4  Cush.  (INIass.)  212. 

«84  Van  Wagner  v.  Van  Nostrand,  19  Iowa,  422. 


444  TITLE.  (Ch.  16 

sion  with  him,  the  covenant  is  broken,''"  as  it  is  also  by  adverse  pos- 
session by  another.*'"  But  the  covenant  is  not  brolien  by  the  ex- 
istence of  a  highway  or  other  easement,"^  by  a  mortgage  on  the 
land,"*  nor  by  an  outstanding  right  of  dower.'"  An  existing 
lease  of  the  premises  conveyed  is  no  breach  of  the  covenant  of  seisin 
if  the  lease  is  known  to  the  grantee.'*"  If  the  grantee  is  seised  him- 
self, he  cannot  claim  a  breach  of  the  covenant  of  seisin.'*^  For  acts 
which  are  a  breach  of  a  covenant  of  indefeasible  seisin,  reference 
must  be  made  to  the  covenant  of  warranty.*  The  covenant  of  right 
to  convey  is  practically  the  same  as  the  covenant  of  seisin.'*' 

274.  COVENANT  AGAINST  INCTJMBJIANCES— A  cove- 

nant against  incumbrances  is  that  there  are  no  out- 
standing rights  in  third  persons,  in  the  land  con- 
veyed. 

275.  HOW  BROKEN— This   covenant  is    broken    by   any 

right  to  or  interest  in  the  land  -wrhich  may  subsist  in 
third  persons  to  the  diminution  of  the  value  of  the 
estate,  but  consistently  with  the  passing  of  the  fee. 

This  covenant  is  used  to  protect  the  grantee  against  incum- 
brances existing  on  land.  The  incumbrances  which  are  covered  by 
this  covenant  are  of  two  kinds:  Those  which  are  permanent  in 
their  nature,  such  as  easements,  and  those  which  may  be  removed, 
such  as  mortgages.     The  covenant  against  incumbrances  is  broken 

886  Downer's  Adm'rs  v.  Smith,  38  Vt.  464;  Sedgwick  v.  Hollenback,  7 
Johns.  (N.  y.)  376. 

836  Wetzel  V.  Richcreek  (Ohio)  40  N.  B.  1004. 

8  87  Whitbeck  v.  Cook,  15  Johns.  (N.  Y.)  483;  Vaughn  v.  Stuzaker,  16  Ind. 
338. 

83  8  stanard  v.  Eldrldge,  16  Johns.  (N.  Y.)  254;  Reasoner  v.  Edmundson,  5 
Ind.  393. 

88  9  Fitzhugh  V.  Croghan,  2  J.  J.  Marsh.  (Ky.)  430;  Tuite  y.  Miller,  10  Ohio, 
883. 

840  Lindley  v.  Dakin,  13  Ind.  388. 

841  Fitch  v.  Baldwin,  17  Johns.  (N,  Y.)  161. 
•  Post,  p.  447. 

•42  Chapman  v.  Holmes'  Ex'rs,  10  N.  J.  Law,  20. 


§§    274-276)  COVENANT    AGAINST   INCUMBRANCES.  445 

when  the  conveyance  is  made  or  not  at  all,  because  the  incum- 
brances must  exist  then,  if  at  all.'*^  But  incumbrances  which  do 
not  detract  from  the  value  of  the  premises  conveyed  until  they  are 
enforced  against  it  are  held  to  run  with  the  land,  so  that  they  may 
be  sued  on  by  the  person  who  holds  the  land  at  the  time  the  in- 
cumbrance is  enforced.'**  When  there  are  incumbrances  of  this  kind 
on  the  land,  they  constitute  a  breach  of  the  covenant  from  the  time 
of  conveyance,' *°  though,  if  sued  on  before  the  incumbrance  is  en- 
forced, only  nominal  damages  can  be  recovered.'*' 

How  Broken. 

The  covenant  against  incumbrances  is  broken  by  an  outstanding 
mortgage,  unless  the  grantee  is  bound  to  pay  it,'*^  by  a  right  of 
dower,'*'  by  a  paramount  title,'*'  by  an  unexpired  lease,"**  by  an 
outstanding  judgment,'^^  or  by  unpaid  taxes  which  constitute  a 
lien  on  the  land.'"''  The  existence  of  an  easement  is  a  breach  of 
the  covenant  against  incumbrances."^'  Even  when  the  easement 
is  known  to  the  grantee  at  the  time  he  takes  the  conveyance,  most 

343  Clark  V.  Swift,  3  Mete.  (Mass.)  390;  Cathcart  v.  Bowman,  5  Pa.  St.  317; 
Boyd  v.  Belmont,  58  How.  Prac.  (N.  Y.)  513;  Mitchell  v.  Warner,  5  Conn.  497. 
But  see  M'Crady's  Ex'rs  v.  Brisbane,  1  Nott.  &  McC.  (S.  C.)  104.  An  implied 
covenant  against  incumbrances  is  broken  immediately.  Streeper  v.  Abelu, 
59  Mo.  App.  485. 

s*4  Richard  v.  Bent,  59  111.  43;  Knadler  v.  Sharp,  86  Iowa,  236;  Cole  v. 
Kimball,  52  Vt.  639. 

84B  Richard  t.  Bent,  59  111.  43. 

346  Bean  v.  Mayo,  5  Greenl.  (Me.)  94. 

847  Or  unless  the  mortgage  is  excepted  from  the  operation  of  the  covenant. 
Estabrook  v.  Smith,  6  Gray  (Mass.)  572. 

3*8  Dower  is  an  incumbrance,  whether  initiate  or  consummate.  Blgelow 
V.  Hubbard,  97  Mass.  195;   Walker's  Adm'r  v.  Deaver,  79  Mo.  664. 

34  9  Prescott  V.  Trueman,  4  Mass.  627. 

880  Clark  v.  Fisher,  54  Kan.  408,  38  Pac.  493 

8B1  Jenkins  v.  Hopkins.  8  Pick.  (Mass.)  346;  Hall  v.  Dean,  13  Johns.  (N.  T.) 
105. 

3  52  LafEerty  v.  Milligan,  165  Pa.  St.  534,  30  Atl.  1030;  Hill  v.  Bacon,  110 
Mass.  388;  Mitchell  v.  Pillsbury,  5  Wis.  407;  Campbell  v.  McClure,  45  Neb. 
608,  63  N.  W.  920;  Long  v.  Moler,  5  Ohio  St.  271.  But  not  when  they  have 
not  become  a  lien.    Bradley  v.  Dike  (N.  J.  Sup.)  32  Atl.  132. 

868  Schaeffler  v.  Michling,  13  Misc.  Rep.  520,  34  N.  Y.  Supp.  693;  Morgan 
V.  Smith,  11  111.  194;  Isele  v.  Bank,  135  Mass.  142.  But  see  Dunklee  v.  Rail- 
road Co.,  4  Fost.  (N.  H.)  489. 


446  TITLE.  (Ch.  16 

cases  hold  that  It  is  a  breach  of  the  covenant"'**  The  covenant 
against  incumbrances  may  also  be  broken  by  the  premises  con- 
veyed being  subject  to  covenants  which  run  with  the  land,"*'  and 
conditions  which  affect  the  use  of  the  premises."" 

276.  COVENANT  OF  WARRANTY— A  covenant  of  war- 

ranty is  an  assurance  by  the  grantor  of  an  estate 
that  the  grantee  shall  enjoy  it  without  interruption 
by  virtue  of  a  paramount  title. 

277.  HOW  BROKEN— A  covenant  of  warranty  is  broken 

by  a  law^ful  eviction  from  all  or  part  of  the  prem- 
ises. 

278.  SPECIAL  WARRANTY— The   covenant  of  warranty 

may  be  restricted  to  certain  persons  or  claims. 

In  feudal  law  the  covenant  of  warranty  bound  the  warrantor  in 
the  covenant,  on  the  breach  of  the  covenant  and  eviction  of  the 
covenantee,  to  give  the  latter  lands  equal  in  value  to  those  he  had 
lost."*^  The  modem  covenant  of  warranty  gives  the  grantee  only  a 
right  of  action  to  recover  damages  for  the  breach  of  the  covenant."^* 
The  covenant  of  wai'ranty  runs  with  the  land.  It  estops  the  war- 
rantor, and  those  claiming  under  him,  from  setting  up  a  subsequent- 
ly acquired  title  against  the  grantee,"*®  And  some  cases  hold  that 
if  the  grantor,  after  his  conveyance,  acquires  a  title  paramount  to 

SB*  Beach  v.  Miller,  51  111.  207;  Barlow  v.  McKinley,  24  Iowa,  G9;  Yancey 
V.  Tatlock  (Iowa)  61  N.  W.  91)7;  Kellogg  v.  Maliu,  62  Mo.  429.  Contra,  Pat- 
terson V.  Arthurs.  9  Watts  (Pa.)  152. 

8B5  Kellogg  V.  Robinson,  6  Vt.  276;   Bronson  v.  Coffin,  108  Mass.  175. 

366  Kellogg  V.  Robinson,  6  Vt.  276.  But  a  condition  which  may  defeat  the 
estate  is  not  a  breach.    Estabrook  v.  Smith,  6  Gray  (Mass.)  572. 

8  07  Dig.  Hist.  Real  Prop.  (4th  Ed.)  249. 

sBspaxson  v.  Lefferts,  3  Rawle  (Pa.)  67,  note;  Jones  v.  Franklin,  30  Ark. 
631. 

8B9  Bates  V.  Norcross,  17  Pick,  (Mass.)  14;  White  v.  Patten,  24  Pick. 
(Mass.)  324;  Jackson  v.  Stevens,  13  Johns.  (N.  Y.)  316;  King  v.  Gllson,  82 
111.  353:   Terrett  v.  Taylor,  9  Cranch,  43,  53. 


§§    276-278)  COVENANT    OF    WARRAxNTY.  447 

the  one  which  he  has  transferred,  it  immediately  inures  to  the  ben- 
efit of  the  grantee.""  Statutory  provisions  to  this  effect  exist  in 
some  states.^®^  The  covenant  of  warranty  prevents  the  heirs  of  the 
warrantor  from  setting  up  a  paramount  title  to  the  lands  conveyed 
if  they  have  received  assets  from  their  ancestor,  thus  avoiding  cir- 
cuity of  action;  otherwise,  if  the  heirs  were  permitted  to  recover 
from  the  grantee  under  their  paramount  title,  the  grantee  could  in 
turn  sue  them  on  the  covenant  of  warranty,  and  enforce  the  dam- 
ages out  of  the  assets  which  they  had  received  from  the  war- 
rantor.^^' 

How  Brohen. 

The  covenant  of  warranty  is  brokeH  by  an  eviction  by  judgment 
of  law  from  part  or  all  of  the  premises.^**  A  mere  disturbance  of  the 
grantee  will  not  constitute  a  breach  of  the  covenant,  for  the  dis- 
turbance, to  be  a  breach,  must  be  lawful. ^^*  The  grantee,  however, 
need  not  wait  for  an  actual  ouster  under  a  judgment  recovered 
against  him,  but  may  yield  the  possession  to  one  having  a  para- 
mount title  without  incurring  the  cost  of  a  suit,'^"^  and  he  may  even 
accept  a  title  from  such  person  without  losing  his  right-  to  rely  on 
the  covenant  of  warranty.**®  Though  w^hen  he  brings  action  on  the 
covenant,  he  must  show  that  the  title  to  which  he  yielded  was  a 
valid  one.*®^     A  mortgage  enforced  against  the  premises  conveyed 

860  Knowles  v.  Kennedy,  82  Pa.  St.  445;    Crocker  v.  Pierce,  31  Me.  177. 

«6i  1  Stim.  Am,  St.  Law,  §  1454  B. 

862  Bates  V.  Norcross,  17  Pick.  (Mass.)  14;  Cole  v.  Raymond,  9  Gray  (Mass.) 
217.  But  see  Jones  v.  Franklin,  30  Ai'k.  631.  When  those  who  would  be 
the  grantor's  heirs  take  by  purchase,  they  are  not  bound.  "Whites ides  v. 
Cooper,  115  N.  C.  570,  20  S.  E.  295. 

363  Norton  v.  Jackson,  5  Cal.  262;  Hannah  v.  Henderson,  4  Ind.  174; 
Stewart  v.  Drake,  9  N.  J.  Law,  139.    And  see  Lucy  v.  Leving^ton,  2  Lev.  20. 

8  64  Gleason  v.  Smith,  41  Vt.  293. 

86B  Hamilton  v.  Cutts,  4  Mass.  349;  Claycomb  v.  Munger,  51  111.  376;  Funk 
V.  Creswell,  5  Iowa,  62. 

3  6G  Eversole  v.  Early,  80  Iowa,  601,  44  N.  W.  897;  Hall  v.  Bray,  51  Mo. 
288;  Potwin  v.  Blasher,  9  Wash,  460.  37  Pac.  710;  Dillahunty  v.  Railway 
Co.,  59  Ark.  699,  27  S.  W.  1002,  and  28  S.  W.  657.  But  see  Huff  v.  Land  Co. 
(Ky.)  30  S.  W,  660. 

867  Somers  v.  Schmidt,  24  Wis.  417;  Merritt  v.  Morse,  108  Mass,  270; 
Cheney  v.  Straube.  43  Neb.  879,  62  N.  W.  234. 


448  TITLE.  (Ch.  16 

Is  a  breach  of  the  covenant  of  warranty,"*  as  is  the  removal  of 
fixtures  by  one  ha\ing  the  rif^ht  to  do  so."»  The  existence  of  a 
valid  easement  over  the  land  conveyed  is  also  a  breach  of  the  cov- 
enant."^'  But  a  talcing  of  the  land  under  the  right  of  eminent  do- 
main does  not  constitute  a  breach."^  The  covenant  for  quiet  en- 
joyment is  the  same  as  the  covenant  of  warranty  in  all  its  practical 
effects."^^  It  is  an  assurance  to  the  grantee  that  his  enjoyment  of 
the  land  conveyed  shall  not  be  disturbed  by  lawful  means,'"  but 
does  not  attempt  to  protect  him  against  mere  disturbances  by 
trespassers.'^* 

Special  Warranty. 

The  covenant  of  warranty  so  far  considered  is  one  of  general  war- 
ranty, but  the  covenant  may  be  limited  in  its  operation  to  the  claims 
of  particular  persons.  A  covenant  of  special  warranty  is  many 
times  inserted  in  quitclaim  deeds,  by  which  the  grantor  warrants 
the  title  against  all  persons  claiming  through  him.  Such  a  cov- 
enant of  special  warranty  does  not  prevent  the  grantor  from  setting 
up  a  subsequently  acquired  title  against  the  covenantee.""  An- 
other form  of  covenant  of  special  warranty  is  where  the  grantor 
covenants  that  the  title  shall  be  good  against  all  claims  except  a 
certain  mortgage  which  exists  upon  the  land.'^* 

««8  Harlow  v.  Thomas,  15  Pick.  (Mass.)  66;  Tuft  v.  Adams,  8  Pick.  (Mass.) 
547;    White  v.  Whitney.  3  Mete.  (Mass.)  81;    Cowdrey  v.  Ck)it,  44  N.  Y.  382. 

8  69  West  V.  Stewart,  7  Pa.  St.  122. 

87  0  Harlow  v.  Thomas,  15  Pick.  (Mass.)  66;  Russ  v.  Steele,  40  Vt.  310.  But 
see  Hymes  v.  Esty,  36  Hun  (N.  Y.)  147;  Brown  v.  Young,  69  Iowa,  625,  29 
N.  W.  941. 

8T1  Peck  V.  Jones,  70  Pa,  St,  83;   Brimmer  v.  City  of  Boston,  102  Mass.  19. 

8T2  Bostwick  V.  Williams,  36  111.  65,  69;  Emerson  v.  Proprietors  of  Land, 
1  Mass.  464.     But  see  Fowler  v.  Poling,  6  Barb.  (N.  Y.)  105. 

8T3  Sedgwick  V.  Hollenback,  7  Johns.  (N.  Y.)  376. 

87  4  Greenby  v.  Wilcocks,  2  Johns.  (N.  Y.)  1;  Beebe  v.  Swartwout,  3  Gllman 
(111.)   180;    Underwood   v.   Birchard,  47   Vt.  305. 

87  6  Jackson  v.  Winslow,  9  Cow.  (N.  Y.)  13;  Trull  v.  Eastman,  8  Mete. 
CMass.)  124;  Western  Min.  &  Manufg  Co.  v.  Peytona  Cannel  Coal  Co.,  8 
W.  Va,  406;   Buckner  v.  Street,  15  Fed.  365. 

8TB  Freeman  y.  Foster,  65  Me.  508, 


§    279)  COVENANT   FOR   FURTHER   ASSURANCE.  449 

Action  for  Breach, 

At  common  law,  after  the  breach  of  a  covenant,*^'  there  could  be  no 
assignment  of  it.'^"  This  is  still  true,  except  in  states  where  choses 
in  action  are  assignable.^^*  A  covenant  of  warranty  may  be  ap- 
portioned, as,  when  the  land  to  which  it  is  annexed  is  divided  and 
held  by  a  number  of  owners,  the  covenant  attaches  to  each  part, 
and  each  grantee  may  sue  on  the  covenant.' *°  When  there  have 
been  several  successive  conveyances,  each  with  covenants  of  war- 
ranty, and  the  last  grantee  is  evicted,  he  may  sue  all  of  the  war- 
rantors, but  can  recover  only  from  one.'*^  When  the  grantor  is 
sued  on  covenants  of  warranty,  if  the  land  has  been  warranted  to 
him,  he  may  vouch  in  his  warrantor  by  giving  him  notice  of  the 
suit,'"*  and  by  so  doing  he  relieves  himself  of  the  necessity  of  prov- 
ing in  a  subsequent  suit  against  such  warrantor  that  the  action  in 
which  he  was  defeated  was  well  founded.*** 

279.  COVENANT  FOR  FUHTHER  ASSURANCE— A  cov- 
enant for  further  assurance  is  an  agreement  by  the 
grantor  to  do  any  other  acts  -w^hich  may  be  neces- 
sary for  perfecting  the  grantee's  title. 

The  covenant  for  further  assurance  is  used  as  a  means  of  enfor- 
cing specific  performance  of  a  conveyance  which  has  been  made,  and 

8'7  As  to  the  measure  of  damages  for  breach  of  covenants,  see  Hale, 
Dam.  367. 

37  8  Lewes  v.  Ridge,  Cro.  Eliz.  863. 

8  79  Slater  v.  Rawson,  1  Mete.  (Mass.)  450;  Allen  v.  Kennedy,  91  Mo.  824, 
2  S.  W.  142. 

880  Dickinson  v.  Hoomes'  Adm'r,  8  Grat.  (Va.)  353.  And  see  Kane  v. 
Sanger,  14  Johns.  (N.  Y.)  89;    Lane  v.  Woodruff  (Kan.  App.)  40  Pac.  1079. 

3  81  Withy  V.  Mumford.  5  Cow.  (N.  Y.)  137. 

8  82  Grant  v.  Hill  (Tex.  Civ.  App.)  30  S.  W.  952.  The  warrantor  may  be 
required  to  defend,  though  the  claim  set  up  is  invalid.  Meservey  v.  Snell 
(Iowa)  62  N.  W.  767.  An  Intermediate  covenantee  who  has  not  been  damni- 
fied cannot  recover  from  prior  covenantors.    Booth  v.  Starr,  1  Conn.  244. 

8  88  Merritt  v.  Morse,  108  Mass.  276;  Somers  v.  Schmidt,  24  Wis.  417;  Patil 
V.  Witman.  3  Watts  &  S.  (Pa.)  409;  McConnell  v.  Downs,  48  111.  271.  The 
warrantee  cannot  recover  from  the  warrantor  when  the  former  Instigated 
a  third  person  to  claim  title  to  the  land.  Hester  y.  Hunnicutt,  104  Ala.  282, 
16  South.  162. 

REAL  PROP. — 29 


450  TITLE.  (Ch.  16 

might  prove  defective  in  some  respects.  The  covenant  applies  not 
only  to  the  doing  of  fm^ther  acts  which  may  be  necessary  to  protect 
the  grantee's  title,  but  applies  also  to  the  execution  of  additional  in- 
struments to  give  the  grantee  a  perfect  title  of  record,  and  to  remove 
any  clouds  upon  such  title.^^*  The  covenant  for  further  assurance 
is  one  which  runs  with  the  land,'"  and  is  broken  by  the  failure  of 
the  covenantor  to  do  the  various  acts  necessary  for  perfecting  the 
grantee's  title  when  requested.'*' 

ESTOPPEL. 

280.  Title  by  estoppel  arises  -when  the  holder  of  the  real 
title  is  prevented  by  law  from  asserting  it  in  de- 
nial of  his  acts  or  representations,  against  one  who 
has  relied  on  them  to  his  injury.  The  estoppel 
vp'hich  gives  such  title  is  either 

(a)  In  pais  (p.  451),  or 

(b)  By  deed  (p.  453). 

Title  by  estoppel  is  that  title  which  is  created  by  presumption  of 
law  by  an  estoppel  which  prevents  the  actual  owner  of  land  from 
setting  up  his  title  against  one  who  has  acquired  rights  in  the  land 
in  reliance  upon  some  acts  or  representations  of  the  owner,  and 
would  be  injured  by  permitting  the  owner  to  say  that  those  acts  or 
representations  were  false,'*^  When  such  presumptions  arise,  they 
are  conclusive,  and  cannot  be  rebutted  by  the  owner;  though  he 
may,  of  course,  say  that  the  necessary  facts  to  constitute  the  estop- 
pel do  not  exist."'     The  effect  of  an  estoppel  is  to  convey  any  title 

8  84  Lamb  v.  Burbank,  1  Sawy,  227,  Fed.  Cas.  No.  8,012;  Gwynn  v.  Thomas, 
2  Gill  &  J.  (Md.)  420;   Warn  v.  Bickford,  7  Price,  550. 

8»6  Colby  v.  Osgood,  29  Barb.  (N.  Y.)  339;  Middlemore  v.  Goodale,  Cro. 
Car.  503. 

88  0  King  V.  Jones,  5  Taunt.  418.    Of.  Klngdon  v.  Nottle,  1  Maule  &  S.  355. 

8  8T  Bush  V.  Person,  18  How.  82. 

888  Welland  Canal  Co.  v.  Hathaway,  8  Wend.  (N.  Y.)  480;  Hanrahan  v. 
O'Reilly,  102  Mass.  204.  Recitals  do  not  estop  a  party  from  showing  fr:iud. 
Hickman  v.  Stewart,  69  Tex.  255,  5  S.  W.  833.  An  agreement  to  divide  the 
proceeds  of  lands  does  not  create  an  estoppeL  Oliphant  v.  Bums,  14G  N. 
Y.  218,  40  N.  E.  980. 


§   280)  ESTOPPEL.  451 

subsequently  acquired  by  the  grantor  to  the  one  entitled  to  the 
estoppel,'*®  and  not  merely  to  bind  the  title  in  the  hands  of  the 
owner  so  that  he  cannot  set  it  up.  Some  cases  hold  that  the  latter 
is  the  rule.  But  the  weight  of  authority  is  that  in  estoppel  the 
title  inures  to  the  benefit  of  the  grantee  or  a  person  who  has  ac- 
quired rights  in  the  land  in  reliance  upon  the  facts  which  consti- 
tute the  estoppel.'®"  And  in  some  states  it  is  provided  by  statute 
that  the  title  shall  so  inure. '"^  The  estoppel  of  a  tenant  to  deny 
his  landlord's  title  has  been  discussed  in  a  former  chapter.'" 

Estoppel  in  Pals. 

When  one  claims  title  by  an  estoppel  in  pais,  he  must  show  that 
representations  have  been  made  to  him  for  the  purpose  of  influ- 
encing his  conduct,  that  he  has  relied  on  those  representations,  and 
that  he  would  be  injured  by  permitting  the  other  party  to  deny  the 
truth  of  those  representations.'®'  A  case  of  title  by  estoppel  in 
pais  may  be  illustrated  by  the  instance  of  the  owner  of  land  inducing 
another  to  make  improvements  on  the  land  under  a  mistaken  belief 
of  ownership.  In  a  proper  case  the  owner  of  the  land  might  be 
held  estopped  to  set  up  his  title  to  the  injury  of  the  one  who  had  been 
induced  by  him  to  mal^e  the  improvements.'®*  As  to  whether  in- 
fants and  married  women  may  be  bound  by  estoppel  in  pais,  the  cases 

8  89  The  one  claiming  by  estoppel  cannot  recover  for  the  breach  of  a  cove- 
nant in  the  deed  to  the  former  owner.  Noke  v.  Awder,  Cro.  Eliz.  436.  And 
see  Andrew  v.  Pearce,  1  Bos.  «&  P.  (N.  R.)  158. 

3  80  Doe  V.  Oliver,  10  Barn.  &  C.  181;  Baxter  v.  Bradbury,  20  Me.  260; 
Somes  V.  Skinner,  3  Pick.  (Mass.)  52;  Walton  v.  Follansbee,  131  111.  147,  23 
N.  E.  332;  Clark  v.  Baker,  14  Cal.  612;  Ivy  v.  Yancey,  129  Mo.  501,  81  S. 
W.  937;  Bush  v.  Marshall,  6  How.  284,  And  see  Reese  v.  Smith,  12  Mo. 
344.  But  the  title  does  not  inure  to  the  grantee  without  his  consent,  so  as 
to  defeat  his  right  to  maintain  an  action  on  the  covenants  of  the  deed. 
Blanchard  v.  Ellis,  1  Gray  (Mass.)  195. 

3911  Stim.  Am.  St.     Law,  §  1454  B. 

892  Ante,  p.  143. 

893  Malloney  v.  Horan,  49  N.  Y.  Ill;  Brown  v.  Bo  wen,  80  N.  T.  519; 
Anderson  v.  Cobum,  27  Wis.  566;  Little  v,  Giles,  25  Neb.  313,  41  N.  W.  186; 
Hill  V.  Epley,  31  Pa,  St.  334;  Stuart  v,  Lowry,  42  Minn.  473,  44  N.  W.  532; 
Parker  v.  Barker,  2  Mete.  (Mass.)  423;  Huntley  v.  Hole,  58  Conn,  445.  20 
Atl,  469. 

394  Niven  v,  Belknap,  2  Johns.  (N.  Y,)  573;  Wendell  v.  Van  Rensselaer,  1 
Johns,  Ch.  (N,  Y.)  344;   Des  Moines  &  Ft  D.  R  Co.  v.  Lynd  (Iowa)  62  N.  W. 


452  TITLE.  (Ch.  16 

are  conflicting.  Some  hold  that  they  may  be  so  bound  If  the  one 
claiming  title  by  estoppel  can  show  fraudulent  acts  on  the  part  of 
the  infant  or  married  woman  without  setting  up  any  contract  en- 
tered into  by  such  person,  because  infants  and  married  women 
would  have  no  power  to  contract  in  relation  to  their  lands,  but  could 
be  bound  by  their  fraudulent  acts/""  An  estoppel  in  pais  may 
arise  either  by  positive  acts  or  by  the  omission  to  do  acts, — such  as 
to  give  notice  to  one's  title  to  land  when  required  to  do  so.  For  in- 
stance, if  one  stands  by  and  sees  his  land  sold  by  another  person 
without  notifying  the  purchaser  of  his  rights  therein,  he  will  be 
estopped  from  setting  up  his  title  against  such  purchaser.'*"  If, 
however,  the  owner  has  his  title  on  record,  the  record  is  notice  to 
such  purchaser,  and  no  estoppel  can  arise.'*^  The  cases  are  con 
flicting  as  to  whether  fraud  is  a  necessary  element  of  estoppel  iu 
pais.'"  But  there  is  substantial  agreement  that  the  effect  must 
be  the  same  as  if  a  fraudulent  intent  existed.^*® 

806;  Phillips  v.  Clark,  4  Mete.  (Ky.)  348;  Muse  v.  Hotel  Co.,  G8  Fed.  637; 
Union  Pac.  Ry.  Co.  v.  U.  S.,  15  C.  C.  A.  123,  67  Fed.  975;  Wehrmann  v. 
Conklin,  155  U.  S.  314,  15  Sup.  Ct.  129.  Where  lots  are  sold  as  abutting  ou 
a  street,  the  vendor  is  estopped  to  deny  the  dedication  of  the  street  by  him. 
McLemore  v.  McNeley,  5G  Mo.  App.  55G. 

886  For  cases  holding  infants  and  married  women  estopped,  see  Blakeslee 
V.  Sincepaugh,  71  Hun,  412,  24  N.  Y.  Supp.  947;  Knight  v.  Thayer,  125  Mass. 
25;  Howell  v.  Hale,  5  Lea  (Tenn.)  405;  Appeal  of  Grim,  105  Fa.  St.  375; 
Guertin  v.  Mombleau,  144  111.  32,  33  N.  B.  49;  Sandwich  Manuf'g  Co.  v. 
Zellmor,  48  Minn.  408,  51  N,  W.  379;  Berry  v.  Seawall,  13  C.  C.  A.  101,  G") 
Fed.  742  (a  parol  partition).  For  cases  holding  infants  and  married  women 
not  estopped,  see  Innis  v.  Templeton,  95  Pa.  St.  262;  Spencer  v.  Carr,  45  N. 
Y.  406;  McBeth  v.  Trabue,  69  Mo.  642;  Hilburn  v.  Harris  (Tex.  Civ.  App.) 
29  S.  W.  923.  A  married  woman  is  not  estopped  by  an  invalid  power  of 
attorney.    Brown  v.  Rouse,  104  Cal.  672,  38  Pac.  507. 

896  Cochran  v.  Harrow,  22  111.  345;  Dickerson  v.  Colgrove,  100  U.  S.  578; 
(\'endell  v.  Van  Rensselaer,  1  Johns.  Ch.  (^J.  Y.)  344;  Bates  v.  Swiger  (\Y. 
Va.)  21  S.  E.  874;  Mask  v.  Allen  (Miss.)  17  South.  82;  Swift  v.  Stovall  (Ala.) 
4.7  South.  186.    But  see  Irwin  v.  Patchen,  1G4  Pa.  St  51,  30  Atl.  436. 

8  97  Lathrop  v.  Bank,  31  N.  J.  Eq.  273;  Vlele  v.  Judson,  82  N.  Y.  82; 
Porter  v.  Wheeler  (Ala.)  17  South.  221.  But  see  Neal  v.  Gregory,  19  Fla.  356. 
The  record  of  the  forged  deed  raises  no  estoppel  against  the  owner  of  the 
land.    Meley  v.  Collins,  41  Cal.  663. 

«»8  That  fraud  is  a  necessary  element  of  estoppel,  see  Henshaw  v.  BIssell, 

>»»  Maple  V.  Kussart,  53  Pa.  St.  348;    McNeil  v.  Jordan,  28  Kan.  7. 


§  280)  ESTOPPEL.  453 

Same — Dwision  Lines. 

A  large  number  of  cases  on  estoppel  in  pais  have  arisen  in  con- 
nection with  division  lines  and  fences,  and  the  holdings  of  the 
court  are  by  no  means  uniform.  If  the  parties,  in  locating  the 
line,  merely  agree  to  put  a  fence  or  building  on  a  certain  line  with- 
out any  reference  to  where  the  actual  boundary  is,  or  if  the  fence  or 
building  was  located  otherwise  than  on  the  true  line  through  mis- 
take, no  estoppel  arises,  and  either  party  may  claim  to  the  true  line 
when  it  is  discovered. *°°  On  the  other  hand,  if  the  true  line  is  un- 
known through  loss  of  monuments,  and  the  parties  agree  upon  a 
division  line,  either  themselves  or  through  arbitrators,  the  parties 
are  estopped  to  claim  that  such  line  is  not  the  true  line.*"* 

Estoppel  hy  Deed. 

No  one  can  be  estopped  by  deed  who  has  not  power  to  make  a 
valid  deed.*"*  When  title  arises  through  estoppel  by  deed,  the 
grantor  is  estopped  to  deny  that  he  had  the  interest  which  he  pur- 
ports to  convey  by  his  deed.*°^  When  the  deed  is  by  indenture, 
both  parties  may  be  estopped  to  deny,  unless  one  of  them  has  been 
induced  to  execute  the  deed  by  fraud,*"*  that  the  contract  which 
arises  from  the  conveyance  is  binding  on  them.*""     So,  too,  in  o„ 

18  Wall.  271;  Davidson  v.  Young,  38  111.  145;  Boggs  v.  Mining  Co.,  14  Cal. 
279;  Jewett  v.  Miller,  10  N.  Y.  402;  Andrews  v.  Lyons,  11  Allen  (Mas-s,) 
849.     Contra,  Maple  v.  Kussart,  53  Pa.  St.  348. 

400  Proctor  v.  Machine  Co.,  137  Mass.  159;  Proprietors  of  Liverpool 
Wharf  V.  Prescott,  7  Allen  (Mass.)  494;  Thayer  v.  Bacon,  3  Allen  (^lass.) 
163.  But  not  after  acquiescence  for  the  period  of  the  statute  of  limitations. 
Chew  V    Morton,  10  Watts  (Pa.)  321. 

<oi  Reed  V.  Farr,  35  N.  Y.  113;  Jackson  v.  Ogden,  7  Johns.  (N.  Y.)  238; 
Joyce  V.  Williams,  26  Mich.  332;    Knowles  v.  Toothalier,  58  Me.  174. 

402  Bank  of  America  v.  Banks,  101  U.  S.  240,  247;  Jackson  v.  Vanderheyden, 
17  Johns.  (N.  Y.)  167. 

403  Logan  v.  Eaton  (N.  H.)  31  Atl.  13;  Bank  of  U.  S.  v.  Benning,  4  Cranch, 
C.  C.  81,  Fed.  Cas.  No.  908;    Carson  v.  Cochran,  52  Minn.  67,  53  N.  W.  1130. 

404  Jackson  v.  Ayers,  14  Johns.  (N.  Y.)  224;  Alderson  v.  Miller,  15  Grat 
(Va.)  •'79. 

40  5  Fort  V.  Allen,  110  N.  C.  183,  14  S.  E.  685;  Raby  v.  Reeves,  112  N.  C. 
688,  16  S.  E.  760;  Pitch  v.  Baldwin,  17  Johns.  (N.  Y.)  161.  Acceptance 
of  a  devise  may  estop  the  devisee  to  set  up  a  claim  Inconsistent  with  th» 
will.  Hyde  v.  Baldwin,  17  Pick,  (Mass.)  303;  Watson  y.  Watson,  128  Masa 
152. 


454  TITLE.  (Ch.  16 

deed  poll,  the  grantee  may,  by  his  acceptance  of  the  deed,  be  estop- 
ped to  deny  the  contents  of  the  deed.*°'  A  quitclaim  deed  estops 
the  grantee  as  to  the  grantors  capacity.*"^  The  common-law  con- 
veyance by  feoffment  imposed  an  estoppel  on  the  feoffor  during  his 
life,  which  prevented  him  from  setting  up  a  paramount  title  subse- 
quently acquired.'"'*  IJut  deeds  of  release  and  quitclaim  place  no 
estoppel  on  the  grantor  as  to  future-acquired  interests,*"'  though 
they  do  as  to  rights  existing  at  the  time  of  the  conveyance.**" 
Deeds  operating  under  the  statute  of  uses  cause  no  estoppels  as  to 
either  present  or  future  titles,  unless  they  contain  covenants  which 
so  operate.***  Estoppel  by  deed  may  arise  through  recitals  contain- 
ed therein,  such  as  recitals  as  to  the  origin  of  the  title,**'  or  where 
the  grantor  recites  that  the  land  conveyed  is  bounded  by  a  street.*** 
A  recital,  however,  to  be  effectual  as  an  estoppel,  must  be  definite.*** 
Recitals  in  a  will  bind  those  claiming  under  the  will  as  to  particular 
facts  stated  therein. **''  Deeds  containing  covenants  of  warranty  estop 

*08  Comstock  V.  Smith,  26  Mich.  306;  Chloupek  v.  Perotka,  89  Wis.  551,  62 
N.  W.  537.  A  compromise  deed  does  not  necessarily  raise  an  estoppel.  Strong 
V.  Powell,  92  Ga.  591,  20  S.  E.  6.  A  grantee  may  show  that  he  was  evicted 
under  a  title  paramount  to  that  of  his  grantor,  and  that  he  is  holding  as 
tenant  under  the  owner  of  such  paramount  title.  Moore  v.  Smead,  89  Wis. 
558,  62  N.  W.  426. 

407  A  grantee  under  a  quitclaim  deed  from  a  county  is  estopped,  as 
against  a  former  grantee  of  the  county,  to  deny  the  county's  power  to  con- 
vey.    PtOberts  V.  Railroad  Co.,  15S  U.  S.  1,  15  Sup.  Ct  756. 

*o8  3  Washb.  Real  Prop.  (5th  Ed.)  103. 

409  Frost  V.  Society,  56  Mich.  62,  22  N.  W,  189;  Wight  r.  Shaw,  5  Gush. 
(Mass.)  56;  Miller  v.  Ewing,  6  Cush.  (Mass.)  34;  Hanrick  v.  Patrick,  119  C. 
S.  156,  7  Sup.  Ct.  147;  Jourdain  v.  Fox  (Wis.)  62  N.  W.  936;  Stephenson  v. 
Boody,  132  Ind.  60,  38  N.  E.  331;  Brawford  v.  Wolfe,  103  Mo.  391,  15  S.  W. 
426;   Kimmel  v.  Benna,  70  Mo.  52;   Cbauvin  v.  Wagner,  18  Mo.  531. 

410  Prewltt  V.  Ashford)  90  Ala.  294,  7  South.  831. 
*ii  .lackson  v.  Wright,  14  Johns.  (N.  Y.)  193. 

412  Stone  V.  FItts,  38  S.  C.  393,  17  S.  E.  136;  Mitchell  v.  Klnnard  (Ky.)  29 
S.  W.  "'.09.  And  see  Lindauer  v.  Younglove,  47  Minn.  62,  49  N.  W.  384;  Good- 
win V.  Folsom  (N.  H.)  32  Atl.  159.  But  cf.  Frick  v.  Fiscus,  164  Pa.  St  623, 
30  Atl.  515. 

*i3  But  It  may  be  shown  that  such  a  recital  was  inserted  by  mistake.  Long 
T.  Cruger  (Tex.  Civ.  App.)  28  S.  W.  568. 

*i<  Onward  Building  Soc.  v.  Sraithson  [1893]  1  Ch.  1, 

*i6Denu  V.  Cornell,  3  Johns.  Gas.  (N.  Y.)  174;    Katz  v.  Schnaier,  87  Hun, 


§  280)  ESTOPPEL.  i6ii 

the  grantor  from  setting  up  a  subsequently  acquired  title  against 
his  grantee.*^®  When  there  is  a  conveyance  by  co-tenants  of  a  joint 
estate,  no  estoppel  is  raised  against  any  one  tenant  as  to  the  shares 
of  the  others.*^^  Many  cases  hold  that  a  married  woman  may  be 
estopped  by  her  deed  which  is  made  effectual  by  her  husband  join- 
ing with  her,*^*  though  other  cases  deny  this  to  be  the  rule.*^®  It 
would  seem  that  a  married  woman  should  be  estopped  by  her  deed 
whenever  statutes  have  provided  that  such  deed  shall  be  effectual 
to  pass  her  title  to  the  property.  A  wife  is  not  estopped,  however, 
by  joining  in  her  husband's  conveyance  to  release  her  right  of  dow- 
er through  any  recitals  or  covenants  in  such  deed.  Nor  is  a  hus- 
band estopped  by  joining  in  his  wife's  conveyance  to  release  his  right 
of  curtesy.*^"  Estoppels  bind  only  parties  and  privies.*^^  They 
cannot  be  set  up  against  strangers  *^*  or  by  them.*^'     All  persons 

343,  34  N.  Y.  Supp.  316.  But  see  Hatch  v.  Ferguson,  15  C.  C.  A.  201,  68  Fed. 
43. 

*i6Wadhams  v.  Swan,  109  111.  46;  Smith  v.  Williams,  44  Mich.  240,  6  N. 
W.  662;  Thomas  v.  Stickle,  32  Iowa,  72.  But  see  Younts  v.  Starnes,  42  S. 
C.  22,  19  S.  E.  1011.  Those  claiming  under  the  grantor  are  estopped.  White 
V.  Patten,  24  Pick.  (Mass.)  324.  And  see  ante,  p.  446.  An  estoppel  to  set  up 
an  after-acquii'ed  title  is  created  by  a  covenant  for  further  assurance.  Ben- 
nett V.  Waller,  23  111.  183.  But  the  heirs  of  the  grantor  are  not  estopped  un- 
less they  have  received  assets  from  him,  Chauvin  v.  Wagner,  18  Mo.  531; 
or  when  they  claim  by  purchase,  and  not  by  descent,  Trolan  v.  Ilogers,  88 
Hun,  422,  34  N.  Y.  Supp.  836. 

417  Weiser  v.  Weiser,  5  Watts  (Pa.)  279;  Walker  v.  Hall,  15  Ohio  St.  355. 
But  see  Rountree  v.  Denson,  59  Wis.  522,  18  N.  W.  518. 

*i8Guertin  v.  Mombleau,  144  111.  32,  33  N.  E.  49;  Knight  v.  Thayer,  125 
Mass.  25;  Sandwich  Manuf'g  Co.  v.  Zellmer,  48  Minn.  408,  51  N.  W.  379; 
BaUey  v.  Seymour,  42  S.  C.  322,  20  S.  E.  62.  Her  subsequent  grantee  may 
be  estopped.    Ramboz  v.  Stowell,  103  Cal.  588,  37  Pac.  519. 

419  Thompson  v.  Merrill,  58  Iowa,  419,  10  N.  W.  796;  Hempstead  v.  Easton, 
33  Mo.  142;  Jackson  v.  Vanderheyden,  17  Johns.  (N.  Y.)  1G7;  and  see  Miller 
V.  Miller,  140  Ind.  174,  39  N.  E.  547. 

420  Raymond  v.  Holden,  2  Gush.  (Mass.)  270;  Strawn  v.  Strawn,  50  111.  33; 
O'Neil  V.  Vanderburg,  25  Iowa,  104. 

421  Campbell  v.  Hall,  16  N.  Y.  575;  Bates  v.  Norcross,  17  Pick.  (Mass.)  14; 
Graves  v.  Colwell,  90  111.  612;    Broad  well  v.  Merritt,  87  Mo.  95. 

42  2  Right  V.  Bucknell,  2  Barn.  &  Add.  278;   Jackson  v.  Bradford,  4  Wend. 
(N.  Y.)  619. 
4  23  Sunderlln  v.  Struthers,  47  Pa.  St.  411;    Glasgow  v.  Baker,  72  Mo.  44L 


456  TITLE.  (Ch.  16 

claiming?  under  one  who  is  estopped  are  estopped  also  if  they  have 
notice  of  the  facts  constituting  the  estoppel.*^**  The  grantor,  how- 
ever, in  a  deed  which  would  raise  an  estoppel  against  him,  may  ac- 
quire a  new  title  against  his  grantee,**"  as  under  a  tax  sale  for  taxes 
levied  after  his  conveyance.*^" 

ADVERSE  POSSESSION". 

281.  One  w^ho  disseises  the  owner  of  land,  and  holds  it  ad- 
versely for  the  period  prescribed  by  the  statute  of 
limitations,  acquires  title  to  the  estate  of  the  dis- 
seisee. Acquisition  of  title  by  adverse  possession 
Is  subject  to  the  follo-sving  conditions; 

(a)  The  possession  must  be  actual  for  part  of  the  land 

at  least  (p.  459). 

(b)  It  must  be  visible  or  notorious  (p.  462). 

(c)  It  must  be  hostile  or  adverse  (p.  463). 

(d)  It  must  be  exclusive  (p.  465). 

(e)  It  must  be  continuous  by  one  person  or  by  persons 

in  privity  (p.  406). 

(f)  Possession  is  adverse  to  all  who  have  an  immediate 

right  to  the  possession  and  are  not  under  disability 
(p.  468). 

(g)  Possession  must  be  continued  for  the  -whole  timft  re- 

quired by  the  statute  (p.  469). 
(h)  Abandonment  by  the  disseisor  after  the  full  period 
has  run  does  not  divest  his  title  (p.  469). 

One  who  has  possession  of  land  is  entitled  to  hold  such  land 
against  all  persons  except  the  rightful  owner;  *2^  and,  if  there  were 

Heirs  and  assigns  may  claim  an  estoppel.  Trull  v.  Eastman,  3  Mete.  (Mass.) 
121.  A  reversion  may  be  created  by  estoppel.  Sturgeon  r.  Wingfield,  15 
Mees.  &  W.  224;  Cutlibertson  v.  Irving,  4  HurL  &  N.  742.  Cf.  Beddoe  v.  Wads- 
worth,  21  Wend.  (N.  Y.)  120.    Contra,  Slater  v.  Rawson,  1  Mete.  (Mass.)  450. 

*2*  Shay  V.  McNamara,  54  Cal.  169;  Kimball  v.  Blaisdell,  5  N.  H.  533; 
Doe  V.  Skirrow,  2  Nev.  &  P.  123. 

42B  Ei-vla  V.  Morris,  20  Kan.  664. 

426  Hannah  v.  Collins,  94  Ind.  201. 

*aT  Hughes  v.  Graves,  39  Vt  359. 


§    281)  ADVERSE    POSSESSION.  457 

no  one  entitled  to  the  land,  the  first  person  taking  possession  there- 
of would  become  the  owner,  and  his  title  would  be  said  to  arise  b^ 
occupancy.*^*  But  as  all  public  land  in  this  country  is  owned  b\ 
the  United  States  or  the  states,  no  title  can  be  acquired  by  occu- 
pancy now.  When  a  man  takes  possession  of  land  belonging  to 
another  he  acquires  rights  therein  which  may  ripen  into  a  title 
either  through  the  doctrine  of  estoppel,  by  which  the  true  owner 
may  be  prevented  from  setting  up  his  title  against  the  one  in  pos- 
session, or  through  the  statutes  of  limitations,  which  provide  that, 
if  one  holds  possession  of  land  for  the  period  provided  by  the  stat- 
utes of  the  various  states,  the  owner  of  the  laud  shall  have  no  power 
to  dispossess  him.  There  are  two  theories  as  to  the  manner  in 
which  statutes  of  limitation  operate.  One  is  that  it  merely  de- 
stroys the  remedy  of  the  true  owner,  and  thus  cuts  off  his  rights 
against  the  one  in  possession,  who,  as  already  stated,  has  title  by 
that  possession  against  all  other  persons,  by  the  mere  fact  of  having 
possession.*^®  The  other  theory  is  that  the  statute  of  limitation 
operates  to  transfer  the  title  of  the  real  owner  to  the  one  in  adverse 
possession  of  the  land,  and  that  the  latter  acquires  a  title  which  he 
can  himself  sue  on.*^°  All  titles  acquired  by  virtue  of  the  statute 
of  limitations  are  for  the  same  estates  as  the  one  disseised  owned. 
Though  it  is  not  presumed  that  one  in  possession  claims  any  less 
estate  than  a  fee  simple,*^^  it  may  be  that  a  less  estate  will  be  gain- 
ed, as  in  a  case  where  a  tenant  for  life  is  disseised,  and  statute  of 
limitation  has  run  against  him.  The  disseisor  has  an  estate  only 
for  the  life  of  the  person  whom  he  has  disseised,  because  the  owners 
of  the  remainders  dependent  on  that  estate  do  not  loose  their  right  to 
recover  the  land  until  the  expiration  of  the  statutory  period  after 
their  right  to  the  possession  of  land  accrues,  which  is  not  until  the 
death  of  the  life  tenant.*^^ 

428  2  Bl.  Comm.  258.  As  to  occupancy  of  an  estate  per  autre,  see  ante, 
p.  67. 

*2  9  2  Dembitz,  Land  Tit.  1345. 

430  Toll  V.  Wright,  37  Mich.  93;  Farrar  v.  Helniich,  86  Mo.  521;  Stokes  v. 
Berry,  2  Salk.  421.  The  disseisor  may  bring  an  action  to  quiet  title.  Inde- 
pendent Dist.  of  Oak  Dale  v.  Fagen  (Iowa)  63  N.  W.  456. 

481  Some  statutes  provide  that  a  fee  simple  shall  be  acquired.  See  East 
Tennessee  Iron  &  Coal  Co.  v.  Wiggin,  15  C.  C.  A.  510,  68  Fed.  446. 

43  2  piuche  T.  Jones,  4  C.  0.  A.  622,  54  Fed.  8G0;    Pinckney  v.  Burrage,  31 


458  TITLE.  (Ch.  16 

Seisin  and  Disseisin. 

Seisin,  as  meaning  possession  of  land,  has  already  been  dis- 
cussed/^"  It  is  impossible  for  two  persons,  unless  they  are  joint 
owners,  to  have  lawful  seisin  of  the  same  land  at  the  same  time.  If 
two  persons  are  thus  in  possession,  the  one  who  has  title  to  the  land 
will  have  the  seisin  also.^^*  One  who  takes  possession  of  land 
against  the  claims  of  the  rightful  owner  is  said  to  disseise  the  lat- 
ter, and  is  called  a  disseisor.  It  is  not  necessary  that  such  person 
be  sui  juris,  for  an  infant  may  be  a  disseisor,*^''  Before  consider- 
ing any  details  or  elements  of  disseisin  and  adverse  possession,  it 
may  be  mentioned  that  one  may  be  disseised  by  election;  that  is,  he 
may  treat  certain  acts  of  a  trespasser  as  a  disseisin,  and  proceed 
against  him  by  the  same  remedies  as  are  given  one  who  is  disseised 
of  his  land.*^'  In  order  that  a  disseisin  may  be  claimed  in  this 
way,  the  disseisee  must  actually  abandon  the  possession.*'^  A  man 
may  be  seised  of  his  land  by  reason  of  his  being  in  actual  possession 
or  occupancy  of  it  himself,  or  he  may  be  seised  through  another, 
holding  subordinate  to  him,  as  a  landlord  is  seised  though  his  ten- 
ant be  in  possession.*^^  When  the  owner  of  lands  has  been  dis- 
seised, his  interest  in  the  land  has  been  reduced  to  a  mere  right  of 

N.  J.  Law,  21;  Merritt  v.  Hughes,  36  W.  Va.  357,  15  S.  E.  56;  Bagley  v.  Ken- 
nedy, 81  Ga.  721,  8  S.  E.  742.  So,  where  possession  is  talien  as  life  tenant  un- 
der a  void  will  and  title  gained  by  lapse  of  time,  the  disseisor  will  have  only 
a  life  estate  as  against  the  remainder-man  in  the  will.  Board  v.  Board,  L.  R. 
9  Q.  B.  48.  But  where  husband  and  wife  are  disseised  of  the  wife's  lands, 
her  right  of  entry  accrues  at  once.  Melvin  v.  Proprietors,  16  Pick.  (Mass.)  161. 
Contra,  Foster  v.  Marshall,  22  N.  H.  491.  If  the  estate  in  reversion  or  re- 
mainder is  created  after  the  disseisin,  the  reversioner  or  remainder-man  is 
barred  at  the  same  time  as  the  tenant  of  the  particular  estate.  Doe  v.  Jones, 
4  Term  R.  308. 

*3s  Ante,  p.  31. 

434Hunnicutt  v.  Peyton,  102  U.  S.  333;    Farrar  v.  Heinrich,  86  Mo.  521. 

<35  Lackman  v.  Wood,  25  Cal.  147. 

*38Busw.  Lim.  §  237,  note;  Blunden  v.  Baugh,  Cro.  Car.  302;  Smith  v. 
Burtis,  6  Johns.  (N.  Y.)  197,  215;  Proprietors  of  Township  No.  6  v.  McFar- 
land,  12  Mass.  325,  327;  Proscott  v.  Nevers,  4  Mason,  327,  329,  Fed.  Cas. 
No.  11,390. 

-•ST  Burns  v,  Lyude,  6  Allen  (Mass.)  305,  312;  Munroe  v.  Ward,  4  Allen 
(Mass.)    150. 

*8  8  See  ante,  p.  285. 


I   281)  ADVERSE    POSSESSION.  459 

entry;  that  is,  the  owner  must  make  an  actual  entry  on  the  land  in 
order  to  regain  his  seisin,  but  for  this  purpose  a  physical  ouster  of 
the  disseisor  is  not  essential."'  It  is  simply  necessary  that  the 
disseisee  enter  on  the  land  with  the  intention  of  regaining  his  seisin, 
and  do  acts  showing  such  intention.*"  At  common  law,  if,  before 
the  right  of  entry  is  exercised,  there  be  a  descent  cast, — that  is,  if 
the  disseisor  die,  and  his  rights  acquired  by  the  disseisin  are  trans- 
ferred to  his  heirs, — the  disseisee's  right  of  entry  is  changed  to  a 
mere  right  of  action.  This  rule  obtains,  however,  in  only  a  few  of 
our  states.*** 

Possession,  must  he  Actual. 

In  order  that  title  may  be  gained  by  adverse  possession,  it  is  nec- 
essary that  there  be  an  actual  disseisin  of  the  owner,  and  this  can 
only  be  by  the  disseisor  being  in  possession  of  the  land  in  ques- 
tion.**' No  particular  acts  are  necessary  to  show  such  possession, 
though  some  are  of  such  a  nature  that  they  leave  no  doubt  as  to  the 
character  of  the  occupancy.  Among  these  may  be  mentioned  resi- 
dence on  the  land,""  the  erection  of  buildings  and  other  struc- 
tures,*** or  the  actual  inclosure  of  the  land  with  a  fence.**''  None 
of  these  acts  are  absolutely  necessary,  and  in  some  cases  might  be 
impossible,  from  the  character  of  the  property.**'  Adverse  pos- 
session must  be  accompanied  by  an  ouster  of  the  real  owner  of  the 

489  Shearman  v.  Irvine's  Lessee,  4  Cranch,  367;  Jackson  v.  Haviland,  13 
Johns.  (N.  Y.)  229;  Altemus  v.  CampbeU,  9  Watts  (Pa.)  28.  But  see  Jack- 
son V.  Cairns,  20  Johns.  (N.  Y.)  301;  Hall's  Lessee  v.  Vandegrift,  3  Bin. 
(Pa.)  374. 

4*0  Altemus  v,  Campbell,  9  Watts  (Pa.)  28. 

441  3  Washb.  Real  Prop.   (5th  Ed.)   140. 

442  Ward  V.  Cochran,  150  U.  S.  597,  14  Sup.  Ct.  230;    Ewlng  v.  Elcorn,  40 

Pa.   St.  493. 

443  Hughs  V.  Pickering,  14  Pa.  St.  297;  Cunningham  v.  Bnimback,  23 
Ark.  336;  Bell  v.  Denson,  56  Ala.  444.  Cultivation  is  not  always  adverse  pos- 
session.   State  V.  Suttle,  115  N.  C.  784,  20  S.  E.  725. 

444  Ellicott  V.  Pearl,  10  Pet.  412;  Goltermann  v.  Schiermeyer,  111  Mo.  404, 
19  S.  W.  484,  and  20  S.  W.  161;  Moss  v.  Scott,  2  Dana  (Ky.)  271;  Hubbard 
V.  Kiddo,  87  111.  578. 

445Doolittle  V.  Tice,  41  Barb.  (N.  Y.)  181;  Millar  v.  Humphries,  2  A.  K. 
Marsh.  (Ky.)  446.  As  to  what  is  a  sufficient  Inclosure,  see  Yates  v.  Van 
De  Vogert,  56  N.  Y.  526;    Pope  v.  Hanmer,  74  N.  Y.  240. 

446  People  V.  Van  Rensselaer,  9  N.  Y.  291;    De  Lancey  v.  Plepgras,  138  N. 


460  TITLE.  (Ch.  16 

land,  though  it  is  not  necessary  that  it  be  by  force.  Cutting  timber 
or  grass  on  the  land  which  is  claimed  to  be  held  by  adverse  posses- 
sion has  been  held  insufficient  to  show  disseisin.**^  And  in  all 
cases  the  disseisor  must  do  the  acts  which  constitute  the  disseisin 
with  the  intention  to  produce  that  effect.**'  A  mere  intention  to 
disseise  is  not  effectual  unless  accompanied  by  positive  acts.  For 
instance,  the  owner  of  the  surface  of  land  cannot  disseise  another 
who  owns  the  mines  under  the  soil  by  merely  claiming  such  mines, 
but  must  work  them,  or  do  other  acts  indicative  of  ownership.**' 
So,  too,  taking  a  deed  to  lands  from  one  not  the  owner,  and  record- 
ing it,  does  not  constitute  a  disseisin  unless  there  is  an  entry  under 
the  deed.*'"  Nor  would  an  entry  upon  lands  claimed  under  a  deed 
be  a  disseisin  if  the  entry  was  made  by  mistake,  with  no  intention 
to  disseise.*"^  But  an  entry  under  a  deed,  though  the  deed  be  ab- 
solutely void,  will  be  an  ouster  of  the  owner.*"^' 

Constructive  Possession — Color  of  Title. 

The  possession  which  we  have  been  discussing  in  the  last  section 
applies  only  to  the  tracts  of  land  which  are  actually  held  by  the  dis- 

Y.  26,  33  N.  E.  822;  Murphy  v.  Doyle,  37  Minn.  113,  33  N.  W.  220;  Webber 
V.  Clarke,  74  Gal.  11,  15  Pac.  431;    Hubbaid  v.  Kiddo,  87  111.  578. 

**''  Wiggins  V.  Kirby  (Ala.)  17  South.  354;  Mission  of  Immaculate  "Virgin 
V.  Cronin,  143  N.  Y.  524,  38  N.  E.  9G4;  Price  v.  Brown,  101  N.  Y.  669,  5  N. 
B.  434.  Adverse  possession  is  not  shown  by  building  a  shanty  which  Is 
never  occupied,  Wickliffe  v.  Ensor,  9  B.  Mon.  (Ky.)  253;  or  by  gathering 
seaweed,  Trustees  of  East  Hampton  v.  Kirk,  68  N.  Y.  460;  or  by  hauling 
sand  at  intervals  for  20  years,  Strange  v.  Spaulding  (Ky.)  29  S.  W.  137.  But 
cutting  timber  In  a  well-settled  district  may  be  an  actual  disseisin.  Murray 
T.  Hudson,  65  Mich.  670,  32  N.  W.  889;  Horner  v.  Reuter,  152  111.  106,  38  N. 
E.  747;  Scott  v.  Delany,  87  111.  146.  And  cutting  hay  for  20  years  has  been 
held  sufficient.  Sullivan  v.  Eddy,  154  111.  199.  40  N.  E.  482.  And  see  Whit- 
aker  v.  Shooting  Club,  102  Mich.  454,  60  N.  W.  983. 

**8  Jackson  v.  Huntington,  5  Pet  402,  439;  Ewing  v.  Burnet,  11  Pet.  41; 
Clarke  v.  McClure,  10  Grat.  (Va.)  305. 

■»*9  Algonquin  Coal  Co.  v.  Northern  Coal  &  Iron  Co.,  162  Pa.  St  114,  29  Atl. 
402. 

4  60  Trustees  of  Putnam  Free  School  v.  Fisher,  38  Me.  324. 

*5i  Skinner  v.  Crawford,  54  Iowa,  119,  6  N.  W.  144.  But  see  Rowland  y. 
fVilliams,  23  Or.  515,  33  Pac.  402. 

*52  Northrop  v.  Wright,  7  Hill  (N.  Y.)  476;  North  v.  Hammer,  34  Wis.  425; 
McMillan  t.  Wehle,  55  Wis.  685,  13  N.  W.  694;   Moody  v.  Fleming,  4  Ga.  115. 


§    281)  ADVERSE    POSSESSION,  461 

seisor,  and  occupied  by  him.  But  by  the  doctrine  of  constructive 
possession  under  color  of  title  there  may  be  a  disseisin  and  adverse 
holding  of  more  land  than  is  actually  occupied.  This  occurs  when 
the  disseisin  is  made  under  a  deed  or  other  instrument  which  pur- 
ports to  convey  more  land  than  is  occupied  by  the  disseisor.  If  the 
deed  is  recorded,  or  is  otherwise  brought  to  the  notice  of  the  owner, 
the  disseisor  is  held  to  be  in  constructive  possession  of  all  the  land 
purported  to  be  conveyed  by  the  instrument  under  which  he  claims.*" 
Color  of  title  is  anything  in  writing  which  serves  to  define  the  extent 
of  the  disseisor's  claim,  or  it  is  a  writing  which,  upon  its  face,  pro- 
fesses to  pass  title,  but  which  in  fact  does  not  do  it*"*  The  instru- 
ment relied  on  to  give  color  of  title  need  not  be  valid.  Color  of 
title  may  be  given  by  a  deed,*"  an  execution  sale,*^'  a  decree  of 
court,*^^  and  some  cases  hold  that  a  quitclaim  deed  is  sufficient,*"* 
though  this  is  denied  by  others.*"®  In  order  to  acquire  adverse  title 
by  constructive  possession,  claim  of  title  must  in  all  cases  be  brought 
to  the  notice  of  the  owner  of  the  land,  either  by  actual  linowledge  o' 

*63  Jackson  v.  Vermilyea,  6  Cow.  (N.  Y.)  677;  Peoria  &  P.  U.  Ry.  Co.  \. 
Tamplin,  156  111.  285,  40  N.  E.  960;  Cooper  v.  Cotton  Mills  Co.,  94  Tenn.  5SS. 
30  S.  W.  353;  Bon  Air  Coal,  Land  &  Lumber  Co.  v.  Parks,  94  Tenn.  263,  29  S. 
W.  130;  Baker  v.  Swan's  Lessee,  32  Md.  355;  Whitehead  v.  Foley,  28  Tex. 
1.     But  see,  as  to  wild  lands,  Jackson  v.  Woodruff,  1  Cow.  (N,  Y.)  276. 

*B4  2  Dembitz,  Land  Tit.  1414;  2  Pingree,  Real  Prop.  §  1168;  East  Ten- 
nessee Iron  &  Coal  Co.  v.  Wiggin.  15  C.  C.  A.  510,  68  Fed.  446;  Bissing  v. 
Smith,  85  Hun,  564,  33  N.  Y.  Supp.  123;  Millett  v.  Lagomarsino,  107  Cal.  102, 
40  Pac.  25;  Studstill  v.  Willcox,  94  Ga.  690,  20  S.  E.  120;  Finley  v.  Hogan, 
60  Ark.  499,  30  S.  W.  1045.  For  facts  Insufficient  to  establish  color  of  title. 
Bee  Dubuque  v.  Coman,  64  Conn.  475,  30  Atl.  777. 

455  Welborn  v.  Anderson,  37  Miss.  155;  Chickering  v.  Falles,  26  111.  508. 
But  see  Wright  v.  Tichenor,  104  Ind.  185,  3  N.  E.  853.  A  defective  tax  deed 
gives  color  of  title.  Reusens  v.  Lawson,  91  Va,  220,  21  S.  E.  347;  Lennig's 
Ex'rs  V.  White  (Va.)  20  S.  E.  831.  But  see  Nye  v.  Alfter,  127  Mo.  529,  30  S. 
W.  186. 

4B6  Falls  of  Neuse  Manurg  Co.  v.  Brooks.  106  N.  C.  107,  11  S.  E.  456;  Ken- 
drick  V.  Latham,  25  Fla.  819,  6  South.  871. 

4  67  Hills  V.  Buntin,  47  111.  396.  That  a  void  judgment  is  not  sufficient  under 
a  short  statute  of  limitations,  see  Latimer  v.  Logwood  (Tex.  Civ.  App.)  27  S. 
W.  960. 

4E«  Minot  v.  Brooks,  16  N.  H.  874;  McDonough  v.  Jefferson  Co.,  79  Tex.  535, 
15  S.  W.  490. 

*6»  Swift  V.  Mulkey,  14  Or.  59,  12  Pac.  73. 


462  TITLE.  (Ch.  16 

through  notice  implied  by  law.*""  The  doctrine  of  constructive  pos- 
session does  not  apply  to  any  land  which  is  actually  held  by  the  own- 
er.*®^ WTien  a  deed  conveys  land  to  which  the  grantor  has  title,  and 
also  puiports  to  convey  land  to  which  he  has  no  title,  if  the  grantee 
takes  possession  of  the  land  rightfully  conveyed,  he  is  not  in  con- 
stnictive  possession  of  the  other  tract.*'*  So,  if  two  separate  tracts 
of  land  are  attempted  to  be  conveyed  by  a  void  deed,  and  possession  is 
talven  of  only  one,  adverse  possession  will  not  extend  to  the  other 
tract  under  color  of  title.*®'  The  doctrine  of  color  of  title  makes  no 
difference  as  to  the  actual  possession  required  for  the  part  of  the 
land  as  to  which  there  is  a  disseisin  in  fact.*'* 

Possession  mxist  he    Visible  or  Notorious. 

In  order  that  title  may  be  acquired  by  adverse  possession,  it  is 
necessary  that  the  acts  of  the  disseisor  be  such  that  the  owner  will 
be  given  notice  of  the  claim  to  his  lands,*"*  though  it  is  not  necessary 
that  he  have  actual  knowledge  *"  of  such  claim,  if  the  acts  relied  on 
by  the  disseisor  are  such  as  raise  a  presumption  that  the  owner  must 
have  known  of  his  claim.* '^  Fencing  or  occupying  the  lands  is  suffi- 
cient,*'* though  having  them  surveyed  would  not  be.*'®  Nor  is  a  mere 

«8o  Potts  V.  Gilbert,  3  Wash.  C.  O.  475,  Fed.  Gas.  No.  11,347;  EUicott  v. 
I'earl,  10  Pet.  412;  Ewlng's  Lessee  v.  Burnet  11  Pet.  41;  Jackson  v.  Wood- 
ruff, 1  Cow.  (N.  Y.)  276;    Little  v.  Downing,  37  N.  H.  355. 

<«i  St  Louis,  A.  &  T.  H.  R.  Go.  v.  Nugent  152  111.  119,  39  N.  E.  263;  Word 
V.  Box,  66  Tex.  596,  3  S.  W.  93;  Trimble  v.  Smith,  4  Bibb  (Ky.)  257.  And  see 
Fox  V.  Hinton,  Id.  559.  When  land  is  owned  by  several,  possession  of  part 
under  a  deed  to  the  whole  does  not  disseise  all.  Turner  v.  Moore,  81  Tex. 
206,  16  S.  W.  929. 

<62  Word  v.  Box,  66  Tex.  596,  3  S.  W.  93;    Bailey  v.  Garleton,  12  N.  H.  9. 

*«8  Grimes  v.  Ragland,  28  Ga.  123;  Morris  v.  McClary,  43  Minn.  346,  46  N. 
W.  238. 

*64  Humes  v.  Bernstein,  72  Ala.  546. 

*«B  Wilson  v.  Henry,  35  Wis.  241;  Ewlng's  Lessee  v.  Burnet,  11  Pet  53; 
Florida  S.  R.  Co.  v.  Loring,  2  C.  C.  A.  .^46,  51  Fed.  932;  Huntington  v.  Allen, 
44  Miss.  654;  King  v.  Carmichael,  136  Ind.  20,  35  N.  B.  509;  Mlllett  v.  Lago- 
marsino  (Cal.)  38  Pac.  308;   Ponder  v.  Cheeves,  104  Ala.  307,  16  South.  145. 

*88  Actual  knowledge  is  always  sufficient.  Dausch  v.  Crane,  109  Mo.  323, 
19  S.  W.  61;  Brown  v.  Cockerel,  33  Ala.  38. 

*«T  Musick  V.  Barney,  49  Mo,  458;   Bailey  v.  Garleton,  12  N.  H.  9. 

*e8  Cutter  v.  Cambridge,  6  Allen  (Mass.)  20;    Allen  v.  Allen,  58  Wis.  205,  18 

««»  Thompson  v.  Burhans,  61  N,  Y.  52;    Beatty  t.  Mason,  30  Md.  409. 


§281)  ADVERSE    POSSESSION. 


463 


entry  on  the  lands  under  a  void  deed  sufficient  unless  it  is  brought  to 
the  notice  of  the  owner  by  the  deed  being  recorded,  or  in  some  other 
way.*^"  If  a  tenant  attorns  to  one  claiming  adversely  and  gives  that 
as  a  reason  for  refusing  to  pay  rent  to  the  true  owner,  the  latter  has 
notice  of  the  adverse  claim."''  In  one  case*"  it  was  said:  '^f  the 
owner  visit  his  land,  the  indications  of  adverse  possession  and  claim 
should  be  so  patent  that  he  could  not  be  deceived.  In  this  case,  if  the 
owner  should  have  visited  this  land,  he  might  have  seen  wood  cut 
and  raHs  split  and  hauled  off,— pretty  good  indications  of  trespass; 
but  he  would  have  seen  no  habitation,  no  inclosures,  no  fields;  noth- 
ing, indeed,  to  advise  him  that  an  adverse  claim  was  set  up,  that  some 
one  was  disputing  his  title."  The  payment  of  taxes  is  not  sufficient 
to  constitute  an  adverse  holding.*'" 
Possession  must  he  Hostile  amd  Adverse. 

It  must  also  be  shown  that  the  possession  of  the  disseisor  is  hostile 
and  adverse  to  the  true  owner,  and  not  subordinate  to  him.*'*  There 
need  not,  however,  be  a  distinct  claim  of  right  or  title  by  the  dis- 
seisor.*'^ ¥/hether  or  not  the  possession  has  been  adverse  is  a 
question  of  fact  in  each  case.*'"  Where  adjoining  owners  establish 
a  fence  between  their  lands  for  convenience,  without  reference  to 
the  true  line,  and  possession  is  held  by  each  up  to  the  fence  so  estab- 
lished, such  possession  will  not  be  treated  as  adverse,  and  no  dis- 
seisin will  occur,  though  the  fence  be  not  on  the  true  line.*"    It  is 

N.  W.  610.     And  see  Leeper  v.  Baker,  68  Mo.  400.     Living  in  a  shanty  on 
wild  land   while  cutting  timber  has  been   held   insufficient,     McKiunon   v. 
Meston  (Mich.)  62  N.  W.  1014. 
47  0  Bracken  v.  Jones,  63  Tex.  184. 

471  2  Dembitz,  Land  Tit.  1391. 

472  Pike  V.  Robinson.  7U  Mo.  615. 

47  3  Brown  v.  Rose.  48  Iowa,  231;    Scott  v.  Mills,  49  Ark.  266,  4  S.  W.  908. 

474  Chloupek  V.  Perotka,  89  Wis.  551,  62  N.  W.  537;  Cook  v.  Babcock,  U 
Cush.  (Mass.)  206;  Jackson  v.  Berner,  48  111.  203;  Sparrow  v.  Hovey,  44 
Mich.  63,  6  N.  W.  93;    Washburn  v.  Cutter,  17  Minn.  361  (Gil.  335). 

47  B  Puckett  v.  McDaniel,  8  Tex.  Civ.  App.  630,  28  S.  W.  360.  But  there 
must  be,  at  least,  a  general  claim  of  ownership.  Kirkman  v.  Brown,  93 
Tenn.  476,  27  S.  W.  709;    Wade  v.  Johnson,  94  Ga.  348,  21  S.  E.  569. 

476  Cummlngs  v.  Wyman,  10  Mass.  465;  Blackmore  v.  Gregg,  2  Watts  &  S. 
(Pa.)  182;  Highstone'v.  Burdette,  54  Mich.  329,  20  N.  W.  64.  That  adverse 
possession  is  a  question  of  law,  see  Jackson  v.  Huntington,  5  Pet.  402. 

47  7  Bird  v.  Stark,  66  Mich.  654,  33  N.  W.  754;    Goltermann  v.  Schiermeyer, 


464  TITLE.  (Ch.  16 

held  that  if  one  in  possession  of  land  sues  another  for  trespass,  tliis 
is  evidence  of  an  adverse  holding  against  the  owner  of  the  land.*^* 
So  declarations  by  the  disseisor  that  his  holding  is  adverse  to  the  own- 
er are  admissible.*^"  When  entry  has  been  made  under  the  owner, 
possession  so  acquired  is  not  adverse,**"  For  example,  when  an  entry 
was  made  under  a  bond  for  a  deed,  no  adverse  possession  would  be 
acquired  while  the  purchase  price  remains  unpaid.**^  To  make  pos- 
session obtained  under  the  owner  adverse,  there  must  be  a  subse- 
quent disclaimer  of  the  owner's  title,  and  the  disclaimer  must  be 
made  known  to  the  owner.**'  Whenever  a  person  having  a  right  to 
land  enters,  such  entry  is  presumed  to  be  under  the  existing  right, 
and  not  as  a  disseisor.***  But  when  one  has  entered  under  a  convey- 
ance of  the  fee  by  a  life  tenant,  and  continues  in  possession  after  the 
latter's  death,  his  possession  is  adverse  to  the  remainder-man.***  We 
have  already  seen  that  possession  by  a  co-tenant  is  not  adverse  to  the 
other  owners,**''  though  it  may  be  made  so  by  an  actual  ouster  of  the 
co-tenants,  and  a  denial  of  their  title.**®  A  deed  by  a  joint  owner  of 
the  whole  of  the  premises  to  a  stranger  is  not  a  disseisin  unless  there 

111  Mo.  404,  19  S.  W.  4S4,  and  20  S.  W.  161;  Grube  v.  Wells,  34  Iowa,  148. 
But  see  Seymour  v.  Carii,  31  Minn.  81,  16  N.  W.  495;  Ramsey  v.  Glenny,  45 
Minn.  401,  48  N.  W.  322;  Smith  v.  McKay,  30  Ohio  St.  409;  French  v.  Pearce, 
8  Conn.  439. 

*-»  Ilollister  v.  Young,  42  Vt.  403. 

<T0  But  see  Lynde  v.  Williams,  68  Mo.  360. 

*8o  Hoban  v.  Cable,  102  Mich.  206,  60  N.  W,  466;  Coleman  v.  Pickett,  82 
Hun,  287,  31  N.  Y.  Supp.  480;  Whiting  v.  Edmunds,  94  N.  Y.  309;  Campbell 
v.  Shipley,  41  Md.  81;  Abbey  Homestead  Ass'n  v.  Willard,  48  Cal.  614. 
But  see  Sands  v.  Hughes,  53  N.  Y.  287. 

<8i  Tayloe  v.  Dugger,  66  Ala.  444;  Knox  v.  Hook,  12  Mass.  329;  Brown  v. 
King,  5  Mete.  (Mass.)  173;  Harris  v.  Kichey,  56  Pa.  St.  395;  Rigor  v.  Frye,  62 
III.  507.     But  see  Jackson  v.  Foster,  12  Johns.  (N.  Y.)  488. 

482  Hall  V.  Stevens,  9  Mete.  (JMass.)  418;  Long  v.  Mast,  11  Pa.  St.  189;  Clarke 
V.  McClure,  10  Grat.  (Va.)  305;  Allen  v.  Allen,  58  Wis.  202,  16  N.  W.  610;  Grls- 
wold  v.  Little,  13  Misc.  Rep.  281,  34  N.  Y.  Supp.  703. 

483  Nichols  V.  Reynolds,  1  R.  I.  30;    Mhoon  v.  Cain,  77  Tex.  317,  14  S.  W.  24. 

484  Christie  v.  Gage,  71  N.  Y.  189;  Doe  v.  Gregory,  2  Adol.  &  B.  14.  But 
see  Doe  v.  Hull,  2  Dowl.  &  R.  38. 

485  Ante,  p.  840. 

488  Campau  v.  Dubois.  39  Mich.  274;  Rlckard  v.  Rlckard,  13  Pick.  (Mass.) 
251;  Jackson  v.  Tibbita,  9  Cow.  (N.  Y.)  240. 


§   281)  ADVERSE   POSSESSION.  465 

is  an  entry  nnder  the  deed.**'  Possession  In  any  case  without  claim 
of  title  does  not  gire  rise  to  any  title  in  the  occupant,  though  it  be 
continued  for  the  statutory  period.***  The  taking  of  a  deed  by  the 
disseisor  from  the  disseisee  before  the  bar  of  the  statute  of  limita- 
tions is  complete  will  interrupt  its  running.**'  One  who  takes  pos- 
session of  land  for  the  purpose  of  becoming  the  owner  by  adverse 
holding  is  entitled  to  the  statutory  bar  if  his  possession  is  continued 
the  necessary  number  of  years.*"* 

Possession  micsi  he  Eccluswe. 

So,  also,  possession  under  claim  of  adverse  right  must  be  exclusive, 
in  order  to  ripen  into  a  title.**^  This  can  never  be  the  case  when  the 
possession  is  joined  with  that  of  the  owner,  for  when  two  persons 
are  thus  in  possession  the  seisin,  as  we  have  stated,  belongs  to  the 
one  who  holds  the  title.*'*  So,  too,  the  doctrine  of  constructive  pos- 
session under  color  of  title  does  not  apply  if  the  lands  which  are  so 
claimed  are  in  the  actual  possession  of  the  owner.*'*  As  has  been 
stated,  possession  of  a  joint  owner  against  his  co-tenants  must  be  ex- 
clusive and  adverse  to  cut  off  their  rights.*'* 

««T  Jackson  v.  Smith,  18  John*.  (N.  Y.)  411;  King  v.  Carmlchael,  136  IncL 
20,  35  N.  E.  509. 

*•«  Gilchrist  v.  McLaughlin,  7  Ired.  (N.  C )  810;  Brown  v.  Gay,  3  Greenl. 
CMe.)  126;  Brown  v.  Cockerell,  83  Ala.  38;  Grube  v.  WeUs,  34  Iowa,  148; 
St.  Louis  University  v.  McCune,  28  Mo.  481;  Winn  v.  Abeles,  35  Kan.  85,  10 
Pac.  443.  And  see  Crary  v.  Goodman,  22  N.  Y.  170.  But  the  title  under 
which  the  land  Is  claimed  need  not  be  even  prima  facie  good.  Sumner  v. 
Stevens,  6  Mete.  (Mass.)  337,  But  possession  held  under  mistake  may  be  ad- 
verse. Beckman  v.  Davidson,  162  Mass.  347,  89  N.  E.  38;  Wilson  v.  Hunter, 
59  Ark.  626,  28  S.  W.  419. 

489  A  mere  offer  to  purchase  has  been  held  to  have  this  effect.  Lovell  v. 
Frost,  44  Cal.  471.  But  see  Rowland  v.  Williams,  23  Or.  515,  32  Pac.  402. 
Agreeing  to  vacate  for  a  valuable  consideration  stops  the  running  of  the  stat- 
ute. Eldrldge  v.  Parish,  6  Tex.  Civ.  App.  85,  25  S.  W.  49.  And  see  Dletrlck  v. 
Noel,  42  Ohio    St  18. 

*»o  Craig  V.  Cartwright,  65  Tex,  413,  424,  For  exceptions,  see  2  Dembita, 
Land  Tit.  1396.  Possession  need  not  be  under  color  of  title.  Homer  v.  Renter, 
152  111.  106.  38  N.  E.  747. 

*»i  Foulke  V.  Bond,  41  N.  J.  Law,  527. 

*92  Farrar  v.  Heinrich,  86  Mo.  521;   Hunnlcutt  v.  Peyton,  102  D.  S.  833. 

«93  See  ante,  p.  460. 

4»4  Ante,  p.  340. 
KEAI.PKOP. — 30 


466  TITLE.  (Ch.  16 

JPossession  must  be  Contintums. 

The  rights  gained  by  disseisin  will  in  all  cases  be  lost  if  the  pos- 
session is  inteiTupted  or  abandoned  before  the  period  prescribed  by 
the  statute  of  limitations  has  elapsed.*"'*  It  is  not  necessary  that  dur- 
ing the  whole  time  the  disseisor  be  in  actual  occupancy  of  the  land,  or 
have  his  residence  on  it.*"®  It  is  suflQcient  if  the  facts  are  such  as  to 
show  actual  possession  in  any  way.*"  Where  the  disseisin  has  been 
by  two  or  more  persons  jointly,  the  abandonment  of  possession  by  one 
causes  his  rights  to  pass  to  his  co-disseisor.*®^  When  possession  is 
interrupted,  the  running  of  the  statute  of  limitations  is  stopped,  and 
a  subsequent  return  to  possession  will  not  avail.  The  running  of  the 
statute  will  only  begin  from  the  date  of  the  return.*®*  Acquirement 
of  an  adverse  title  is  prevented  if,  before  the  statutory  period  has  ex- 
pired, the  possession  of  the  disseisor  is  interrupted  by  an  entry  by  the 
owner."***" 

Same —  TacMng. 

By  the  doctrine  of  tacking  it  is  held  that  possession  during  the 
whole  period  of  limitation  need  not  be  by  the  same  person,  but  the 

495  Yelverton  v.  Hillard,  38  Mich.  355;  Sparrow  v.  Hovey,  44  Mich.  63,  G 
N.  W.  93;  Brickett  v.  Spofford,  14  Gray  (Mass.)  514;  Bliss  v.  Johnson,  94  N. 
Y.  235;  Moore  v.  Collishaw,  10  Pa.  St.  224;  Groft  v.  Weakland,  34  Pa.  St. 
308;  Messer  v.  Reginnitter.  32  Iowa,  312.  Possession  once  established  will  be 
presumed  to  have  continued,  in  the  absence  of  a  contrary  showing.  Marstou 
V.  Rowe,  43  Ala.  271. 

*8  8  Possession  may  be  held  for  him  by  a  tenant.  Hunton  v.  Nichols,  55  Tex. 
217.  The  fact  that  the  buildings  on  the  land  are  vacant  from  time  to  time 
for  want  of  tenants  will  not  necessarily  interrupt  the  adverse  holding.  Down- 
ing V.  Mayes,  153  111.  330,  38  N.  E.  620;  Costello  v.  Edson,  44  Minn.  135,  46  N. 
W.  299;  Gary  v.  Woodham,  103  Ala.  421,  15  South.  840.  Breaks  in  an  inclo- 
sure  which  is  relied  on  to  establish  adverse  possession  do  not  interrupt  the 
running  of  the  estate.    Williams  v.  Rand  (Tex.  Civ.  App.)  30  S.  W.  509. 

■*9  7  Rieman  v.  Wagner,  74  Md.  478,  22  Atl.  72;  Hughs  v.  Pickering,  14  Pa. 
St.  297. 

*98  Congdon  v.  Morgan,  14  S.  C.  587. 

48  9  Byrne  v.  Lowry,  19  Ga.  27;  Susquehanna  «&  W.  V.  R.  &  Coal  Co.  v. 
Quick,  68  Pa.  St.  189;  Core  v.  Faupell,  24  W.  Va.  238;  Overand  v.  Menczer, 
&".  Tex.  122,  18  S.  AV.  301. 

eoo  Brickett  v.  Spofford,  14  Gray  (Mass.)  514;  Burrows  v.  Gallup,  32  Conn. 
493.  But  see  Bowen  v.  Guild,  130  Mass.  121.  Bringing  an  action  is  not  nec- 
essary to  stop  the  running  of  the  statute.  Shearer  v.  Middleton,  88  Mich. 
621,  50  N.  W.  737. 


§281)  ADVERSE    POSSESSION.  407 

land  may  be  held  by  a  number  of  persons  if  they  are  in  privity,"^"^  and 
the  length  of  their  holdings  added  together  to  make  up  the  statutoiy 
period. ^^2  In  some  eases,  however,  this  doctrine  is  denied  as  to  a 
vendee  of  the  disseisor. '*°^  \Miere  the  rule  obtains,  its  effect  is  to 
give  a  disseisor  the  right  to  convey  the  imperfect  title  which  he  has  ac 
quired  by  his  disseisin  and  adverse  holding.^"*  Not  only  a  grantel^ 
has  a  right  to  add  his  possession  to  that  of  his  grantor  in  making  up 
the  statutory'  period,  but  an  heir  or  a  devisee  may  count  the  time 
during  which  the  land  was  held  by  his  ancestor  or  testator. '*°'  Pos- 
session held  under  a  contract  of  sale  may  be  added  to  that  of  the 
vendor.^""  In  the  same  way  the  possession  of  several  persons  as  ten- 
ants of  the  disseisor  may  be  sufficient  to  give  an  adverse  title.^"^ 

»«i  Doswell  v.  De  La  Lanza,  20  How.  29,  32;  Doe  v.  Brown,  4  Ind.  143; 
City  and  County  of  San  Francisco  v.  Fulde,  37  Cal.  349;  •  Crispen  v.  Hanna- 
van,  50  Mo.  536;  Weber  v.  Anderson,  73  111.  439;  Allis  v.  Field,  89  Wis.  327, 
62  N.  W.  85;  Smith  v.  Reich,  80  Hun,  287,  30  N.  Y.  Supp.  167;  Hughs  v. 
Pickering,  14  Pa.  St.  297;  Cooper  v.  Cotton-Mills  Co.,  94  Tenn.  588,  30  S.  W. 
353;  Tucker  v.  Price  (Ky.)  29  S.  W.  857.  A  testator,  a  person  to  whom  he 
has  devised  the  land  for  life,  and  the  remainder-man  under  his  will,  are  in 
privity.  Haynes  v.  Boardman.  119  Mass.  414.  The  existence  of  privity  may 
be  shown  by  parol  evidence.    Weber  v.  Anderson,  73  111.  439. 

50  2  McNeely  v.  Langan,  22  Ohio  St.  82;  Overfield  v.  Christie,  7  Serg.  &  R. 
(Pa.)  173;  Smith  v.  Chapin,  31  Conn.  530;  Shannon  v.  Kinny,  1  A.  K.  Marsh. 
(Ky.)  3;  Davis  v.  McArthur,  78  N.  C.  357;  Scales  v.  Cockrill,  3  Head  (Tenn.) 
432. 

008  Beadle  v.  Hunter,  3  Strob.  (S.  C.)  331;  King  v.  Smith,  1  Rice  (S.  C.)  10. 
As  holding  that  the  vendor  must  be  in  possession  under  color  of  title  to  make 
his  deed  effectual,  see  Nelson  v.  Trigg,  4  Lea  (Tenn.)  701. 

604  Leonard  v.  Leonard.  7  Allen  (Mass.)  277;  City  of  St.  Paul  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  45  Minn.  387,  48  N.  W.  17;  Cooper  v.  Ord,  60  Mo.  420.  But, 
where  the  conveyance  is  void  on  its  face,  there  can  be  no  tacking,  Simpson  v. 
Downing,  23  Wend.  (N.  Y.)  316;  Potts  v.  Gilbert,  3  Wash.  C.  C.  475,  Fed.  Cas. 
No.  11,347;  nor  where  the  second  claims  adversely  to  the  first,  Jackson  v. 
Leonai-d,  9  Cow.  (N.  Y.)  653. 

605  Williams  v.  McAliley,  Cheeves  (S.  C.)  200;  City  of  St.  Paul  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  45  Minn.  387,  48  N.  W.  17.  So  a  dowress  may  add  her 
husband's  possession  to  her  own.  Doe  v.  Carter,  9  Q.  B.  8ijS.  Contra.  Saw- 
yer V.  Kendall,  10  Cush.  (Mass.)  241.    And  see  Doe  v.  Barnard,  13  Q.  B.  945. 

608  Brown  v.  Brown,  106  N.  C.  451,  11  S.  E.  647;   Mabary  v.  DoUarhide,  9S 
Mo.  198,  11  S.  W.  611. 
60T  Fanning  v.  Willcox,  3  Day  (Conn.)  258. 


4CS  TITLE.  (Ch.  16 

There  must  he  no  gap  in  any  case  between  the  holdings  which  are  to 
be  taclied.'^*" 

Against    Whom  Possession  is  Adverse. 

Disseisin  and  adverse  possession  are  effectual  ooly  against  those 
who  are  entitled  to  the  possession  of  land.  For  this  reason  the  dis- 
seisin of  the  tenant  of  the  particular  estate  is  not  a  disseisin  of  the 
reversioner  or  remainder-man. '^°'  Where  persons  hold  by  the  same 
title,  a  disseisin  of  one  will  act  as  a  disseisin  of  the  other.  For  in- 
stance, the  disseisin  of  a  tenant  is  a  disseisin  of  his  landlord,  and  the 
disseisin  of  a  mortgagor  or  of  a  mortgagee  is  effectual  against  the 
other  party. "^'°  So,  too,  a  cestui  que  trust  may  be  disseised  by  the 
ouster  of  his  trustee;  but  possession  by  the  trustee  will  not  be  ad- 
verse to  the  beneficiary  without  a  disavowal  by  the  trustee  of  the 
relationship."^^  Kor  is  possession  by  heirs  adverse  to  the  claims  of 
the  creditors  of  the  testator."^ ^  In  most  states  the  statute  of  limita- 
tions does  not  begin  to  run  against  persons  who  are  under  disabilities, 
such  as  married  women,"*^*   infants,''^*  and  insane  persons,"^"  until 

008  Louisville  &  N.  R.  Co.  v.  Philyaw,  88  Ala.  264,  6  South.  837;  Warren  v. 
Frederichs,  76  Tex.  647,  13  S.  W.  643. 

609  Watkins  v.  Green,  101  Mich.  493,  60  N.  W.  44;  Doe  v.  Hull,  2  Dowl. 
&.  R.  38;  Wells  v.  Prince,  9  Mass.  508.  Cf.  Taylor  v.  Horde,  1  Burrows,  60. 
The  posstssion  of  the  homestead,  to  which  a  dowress  was  entitled  until  her 
dower  was  assigned,  by  her  assignee,  is  not  adverse  to  the  other  heirs. 
>Gosselin  v.  Smith,  154  111.  74,  39  N.  E.  980;  Fischer  v.  Silkmann,  125  Mo.  165, 
28  S.  W.  435. 

BIO  Poignard  v.  Smith,  8  Pick.  (Mass.)  272. 

■511  Jones  V.  Lemon,  26  W.  Va.  629.  That  a  cestui  que  trust  does  not  hold 
adversely  to  the  trustee,  see  Jeter  v,  Davis,  109  N.  C.  458,  13  S.  E.  908.  A 
mortgagor  does  not  hold  adversely  to  the  mortgagee.  Ivy  v.  Yancey,  129  Mo. 
501,  31  S.  W.  937;  nor  a  mortgagee  to  the  mortgagor,  Dunton  v.  McCook 
(Iowa)  61  N.  W.  977. 

612  Rogers  V.  Johnson,  125  Mo.  202,  28  S.  W.  635. 

618  State  V.  Trontman,  72  N.  C.  551;  Little  v.  Downing,  37  N.  H.  355; 
Throckmorton  v.  Pence,  121  Mo.  50,  25  S.  W.  843.  But  in  many  states  mar- 
ried women  are  no  longer  regarded  as  under  disability.  See  A  Dembilz,  Land 
Tit.  1358. 

614  Jackson  v.  Moore,  13  Johns.  (N.  Y.)  513;  Swearingen  v.  Robertson,  39 
Wis.  462.  The  infancy  of  one  co-tenant  will  not  prevent  the  statute  running 
against  the  others.    Peters  v.  Jones,  35  Iowa,  512. 

•18  Edson  v.  Munsell,  10  Allen  (Alass.)  557.    To  prevent  the  running  of  the 


§    281)  ADVERSE   POSSESSION.  469 

the  disability  is  removed.  But  the  disability  must  exist  at  the  time 
the  statute  begins  to  run.  Disability  occurring  after  the  statute  be- 
gins to  run  will  not  suspend  the  operation  of  the  statute.''^'  It  is 
usually  provided  that  a  short  period  shall  be  given  to  persons  who 
have  been  under  disability,  for  bringing  their  actions  after  the  dis- 
ability is  removed. 

Length  of  Possession  Necessary. 

The  leng;  h  of  adverse  possession  iiece?sary  to  give  title  varies  great- 
ly under  the  statutes  of  the  several  states.  In  a  few  states  an  abso- 
lute limit  is  fixed,  beyond  which  mental  unsoundness  will  not  prevent 
the  acquisition  of  title.'^^'  So  a  few  states  have  an  ultimate  limit,  be- 
yond which  neither  exceptions  nor  disabilities  can  save  the  right  of 
action.^^^  In  many  of  the  states  a  possession  based  either  on  color 
of  title,  or  upon  a  title  which  is  defective  only  in  some  named  particu- 
lar, or  on  a  mode  of  conveyance  which  it  is  the  policy  of  the  law  to 
favor,  is  protected  against  the  entry  or  suit  of  the  dispossessed  owner 
after  a  much  shorter  period  than  that  which  bars  the  right  against  a 
naked  possession. ^^' 

Abandonment. 

The  loss  of  title  by  abandonment  applies  strictly  and  only  to  in- 
corporeal hereditaments,  and  in  that  connection  has  already  been 
treated  of.^-"  Title  to  corporeal  property  can  be  lost  through  aban- 
donment only  by  means  of  estoppel  or  the  statute  of  limitations. 
The  imperfect  title  which  a  disseisor  has  before  the  expiration  of  the 
full  statutory  period  is,  of  course,  lost  if  he  abandons  possession  be- 
fore such  time  has  expired. ^^^    But  as  to  the  effect  of  abandonment 

statute,  greater  disability  Is  necessary  than  to  avoid  a  deed.  Rugan  v.  Sabin, 
3  C.  C.  A.  578,  53  Fed.  415;  Asbury  v.  Fair,  111  N.  C.  251,  16  S.  B.  467. 

B16  Bunee  v.  Wolcott,  2  Conn.  27;  Fleming  v.  Grlswold,  3  Hill  (N.  Y.)  85; 
Thci-p  V.  Raymond,  16  How.  247;  Cunningham  v.  Snow,  82  Mo.  587;  Lynch  v. 
Cannon,  7  Houst.  386,  32  Atl.  391;  Asbury  v.  Fair,  111  N.  C.  251,  16  S.  E.  467. 
The  rule  is  otherwise  as  to  infant  heirs  in  some  states.  Machir  v.  May,  4 
Bibb.  (Ky.)  43;  Rose  v.  Daniel,  3  Brev.  (S.  C.)  438. 

B17  2  Dembitz,  Land  Tit.  1359. 

618  2  Dembitz,  Land  Tit.  1369. 

618  Stoltz  V.  Doeriug,  112  111.  234;  Burton  v.  Perry,  14C  111.  71.  34  N.  E  oO; 
Latta  V.  Clifford,  47  Fed.  614;   Hunter  v.  Ayres,  15  B.  Mon.  (Ky.)  210. 

620  Ante,  p.  357.    But  see  Dikes  v.  Miller,  24  Tex.  417,  424. 

621  Dausch  v.  Crane,  109  Mo.  323,  19  S.  W.  61. 


470  TITLE.  (Ch.  16 

of  the  possession  of  land  to  which  title  has  been  acquired  by  adverse 
possession  under  the  statute  of  limitations  the  cases  are  conflicting. 
The  courts  which  hold  that  title  by  adverse  possession  affects  only  the 
remedy  of  the  real  owner  hold  also  that  the  rights  so  acquired  may 
be  lost  by  abandonment.^"  But  in  jurisdictions  where  the  theory  is 
that  the  statute  of  limitations  transfers  the  title  of  the  former  owner 
to  the  disseisee,  such  a  title  cannot  be  lost  by  an  abandonment  of  the 
premises  after  the  full  statutory  period  has  expired.*** 

ACCRETION. 

282.  Where  soil  is  gradually  deposited  on  the  shore  of  a 
body  of  -water,  the  land  so  formed  belongs  to  the 
riparian  owner  on  -whose  property  the  deposit  is 
formed.     This  is  called  accretion. 

We  have  already  seen  that  anything  which  becomes  permanently 
attached  to  land  becomes  a  part  of  the  realty,  such  as  buildings  and 
fixtures  put  upon  the  land.  This  rule  is  extended  to  cases  of  what  is 
called  title  by  accretion.  By  this  is  meant  that  material  washed  up 
by  the  sea  on  the  lands  of  adjoining  owners  and  soil  deposited  by 
rivers,  which  becomes  attached  to  the  banks,  becomes  the  property 
of  the  owner  of  the  land  on  which  it  is  deposited.^^*  This  process  is 
called  alluvion,  and  must  be  a  gradual  process,  as  distinct  from  a 
sudden  change.*^'^    When  alluvion  takes  place,  and  soil  of  one  owner 

0  22  Doe  V.  Roe,  2G  Ga.  5S2. 

623  Inhabitants  of  School  Dist.  No.  4  v.  Benson,  31  Me.  381;  Schall  v.  Rail- 
road Co.,  35  Pa.  St.  191.  A  subsequent  parol  agreement  will  not  divest  the 
disseisor's  title.  Brown  v.  CocliereU,  33  Ala.  38.  Nor  does  a  re-entiy  by  the 
disseisee  after  the  bar  is  complete  revest  the  title  In  him.  Faloon  v.  Sim- 
shauser,  130  111.  649,  22  N.  E.  835. 

524  Muhy  V.  Norton,  100  N.  Y.  424,  3  N.  E.  581;  Camden  &  A.  Land  Co.  v. 
Lippincott,  45  N.  J.  Law,  405.  The  fact  that  accretions  are  caused  by  ob- 
structions placed  in  the  river  by  third  persons  does  not  change  the  rule. 
Tatum  V.  City  of  St.  Louis,  125  Mo.  G47,  28  S.  W.  1002.  Bigelow  v.  Hoover, 
85  Iowa,  IGl,  52  N.  W.  124.  Seaweed  cast  upon  the  beach  belongs  to  the 
owner  of  the  soil.    Emans  v.  Tumbull,  2  Johns.  (N.  Y.)  314. 

525Cooli  V.  McClure,  58  N.  Y.  437;  County  of  St.  Clair  v.  Lovingston,  23 
Wall.  GS;  Trustees  of  Hopkins'  Academy  v.  Dicliinson,  9  Cush.  (Mass.)  551. 


§    282)  ACCRETION.  471 

is  gradually  worn  away,  and  is  deposited  upon  the  land  of  another,  the 
title  is  held  to  pass  to  the  latter,  because  the  soil  so  deposited  cannot 
be  identijfied  by  its  former  owner.^^^  When,  however,  a  sudden  change 
transfers  a  considerable  portion  of  soil  from  one  owner  and  deposits 
it  upon  the  land  of  another,  title  does  not  pass  to  the  latter  if  the  soil 
so  transferred  is  removed  within  a  reasonable  time,  and  while  it  can 
be  identified. "^^  When  islands  are  formed  in  nonnavigable  rivers,  if 
the  land  on  each  side  is  owned  by  different  persons,  the  island,  if 
wholly  on  one  side  of  the  channel,  belongs  to  the  owner  on  whose 
land  it  forms.^^^  We  have  seen  ^^*  that  the  boundary  line  of  each 
riparian  proprietor  extends  to  the  middle  of  the  stream.  If  the  island 
is  formed  in  the  middle  of  the  channel,  it  belongs  one-half  to  each.^"** 
Islands  formed  in  navigable  rivers  or  in  the  sea  are  the  property  of 
the  state  or  of  the  United  States,  according  to  the  ownership  of  the 
fee  in  the  land  under  the  water.^^^  A  person  who  owns  a  narrow 
strip  along  the  bank  or  shore  of  a  body  of  water  becomes  entitled  to 
all  deposits  by  aHu^ion.^^^  The  owner  of  land  which  is  being  washed 
away  may  protect  his  property'  by  any  means  which  will  stop  the 
action  of  the  water,  though  he  must  not  divert  the  current  so  as  to 

6  26  Lovingston  v.  St.  Clair  Co.,  G4  111.  56;  Miller  v.  Hepburn,  8  Bush.  (Ky.) 
326;    Gifford  v.  Yarborough,  5  Bing.  163;   Foster  v.  Wright,  4  C.  P.  Div.  43S. 

527  Woodbui-y  v.  Short,  17  Vt.  3S7,  389.  When  a  parcel  of  land  is  suddenly 
left  bare  by  the  sea  or  a  navigable  river,  it  belongs  to  the  state.  Halsey  v. 
McCormick,  IS  N.  Y.  147;  Attorney  General  v.  Chambers,  4  De  Gex  &  J.  oo. 
See,  also,  Hodges  v..  Williams,  95  N.  O.  331.  And  so  land  gradually  covered 
by  the  sea  belongs  to  the  state.  Emans  v.  Turnbull,  2  Johns.  (N.  Y.)  313,  322; 
In  re  Hull  &  S.  Ry.,  5  Mees.  &  W.  327. 

528ingraham  v.  Wilkinson,  4  Pick.  (Mass.)  268;  Minton  v.  Steele,  125  Mo. 
181,  28  S.  W.  746;  McCuUough  v.  Wall,  4  Rich.  Law  (S.  C.)  68.  When  an 
island  formed  in  midchannel  is  subsequently  connected  with  the  mainland  by 
the  -water  having  receded,  the  title  to  the  island  is  not  changed.  City  of  Vic- 
toria V.  Schott  (Tex.  Civ.  App.)  29  S.  W.  681. 

62  9  Ante,  p.  422. 

630  Inhabitants  of  Deerfield  v.  Arms,  17  Pick.  (Mass.)  41.  Trustees  of  Hop- 
kins' Academy  v.  Dickinson,  9  Gush.  (Mass.)  544;  Johnston  v.  Jones,  1  Black, 
209,  222. 

631  3  Washb.  Real  Prop.  (5th  Ed.)  61;  Cox  v.  Arnold,  129  Mo.  337,  31  S.  W. 
592;  Cooley  v.  Golden,  117  Mo.  33,  23  S.  W.  100;  Heckman  v.  Swett,  99  Cal. 
303,  33  Pac.  1099.    And  see  ante,  p.  5. 

532  Banks  v.  Ogden,  2  Wall.  57,  69;  Saulet  v.  Shepherd,  4  Wall.  508;  Bristol 
V.  Carroll  Co.,  95  111.  84. 


472  TITLE.  (Ch.  16 

direct  it  against  the  land  of  another  person,  to  the  lattei^s  injury."" 
When  land  is  formed  by  the  receding  of  a  lake  or  pond,  it  belongs  to 
the  adjoining  owners."^*  Property  which  has  been  acquired  by  ac- 
cretion is  transferred  by  a  deed  which  conveys  the  land  on  which 
the  deposit  has  been  made."^'*  A  sudden  change  in  the  channel  of  a 
river  does  not  change  the  boundary  line  of  the  riparian  owners/^' 

DEVISE. 

283.  The  title  to  real  property  may  be  transferred  by  de- 
vise subject  to  the  folio w^ing  conditions: 

(a)  The  will  must  be  properly  executed  by  a  competent 

testator  (p.  473). 

(b)  It  must  contain  -words  of  conveyance,  and  a  descrip- 

tion of  the  property  devised  (p.  473). 

(c)  Any  interest  in  real  property  may  be  devised,  ex- 

cept, in  some  states,  subsequently  acquired  inter- 
ests (p.  474). 

(d)  The  law  of  the  place  where  the  land  is  situated  gov- 

erns the  devise  (p.  474). 

(e)  The    devisee  takes  the  land   as   a  purchaser  imme- 

diately on  the  testator's  death  (p.  475). 

(f)  Devises   are   revoked  if  the  testator's   estate  is  di- 

vested after  the  execution  of  the  will  (p.  476). 

(g)  In  some  states,  if  a  devisee  dies  before  the  testator, 

the  devise  lapses  (p.  477). 

B3  8  Gerrish  v.  Clough,  48  N.  H.  9;  Menzies  v.  Breadalbane,  3  Bligh  ^N.  S.) 
414. 

BS4  Cook  V.  McClure,  58  N.  Y.  437;  Steers  v.  City  of  Brooklyn,  101  N.  T. 
51,  4  N.  E.  7;  Eddy  v.  St.  Mars,  53  Vt.  462;  Bowman  v.  Sunnuchs,  42  Wis. 
233;  Olson  v.  Huntamer  (S.  D.)  61  N.  W.  479.  But  not  when  drained  by  ar- 
tificial means.    Noyes  v.  Collins  (Iowa)  61  N.  W.  250. 

630  Chicago  Dock  &  Canal  Co.  v.  Kinzie,  93  111,  415;  Camden  &  A.  Land 
Co.  V.  Lippincott,  45  N.  J.  Law,  409.  But  see  Terrlere  v.  City  of  New  Orleans, 
85  La.  Ann.  2()9. 

680  Buttenuth  v.  Bridge  Co.,  123  111.  535,  17  N.  E.  439;  Rees  v.  McDaniel, 
115  Mo.  145.  21  S.  W.  913;  Nebraska  v.  Iowa,  143  U.  S.  339,  12  Sup.  Ct.  396; 
Id.,  145  U.  S.  519,  12  Sup.  Ct.  976. 


§  283)  DEVISE.  473 

Title  by  devise  is  that  which  is  acquired  by  persons  who  are 
given  land  under  a  will.  A  will,  as  transferring  land,  differs  from 
a  deed  principally  in  that  it  is  an  instrument  operating  after  the 
death  of  its  maker,  while  a  deed  operates  inter  vivos.  The  same 
instrument,  however,  may  be  construed  either  as  a  will  or  as  a 
deed;  the  effort  of  the  court  construing  such  an  instrument  will 
be  to  carry  out  the  intention  of  the  maker."^^  But  if  it  cannot 
take  effect  until  after  the  latter's  death,  it  will  be  deemed  a  will."*' 
The  competency  of  testators  to  make  wills,  and  of  devisees  to  take 
lands  under  them,  was  considered  in  discussing  personal  capac- 
ity. °^®  For  the  history  of  wills,  the  formalities  necessary  for  their 
valid  execution,  requirements  of  probate,  and  the  method  of  con- 
struing them,  reference  must  be  made  to  works  on  the  law  of  wills. 
It  will  be  possible  here  merely  to  discuss  a  few  points  which  bear 
particularly  on  real  property. 

Operati/oe  Words  in  Wills. 

The  words  generally  used  in  a  will  to  dispose  of  real  estate  are 
"give  and  devise,"  but  any  other  words  which  show  the  intention 
of  the  testator  are  sufficient.°*°  The  words  of  limitation  which  are 
necessary  for  the  creation  of  the  various  interests  in  land  by  will 
have  already  been  discussed  in  connection  with  the  different  es- 
tates.^*^  A  will  must  contain  a  sufficient  description  of  the  prop- 
erty intended  to  be  devised  to  identify  it,^*^  though  by  construc- 
tion, in  order  to  carry  out  the  intention  of  testator,  terms  used  in 
wills  in  describing  property  are  often  given  a  broader  meaning  than 
they  would  be  in  other  instruments.'*'     For  instance,  the  word 

»S7  Taylor  v.  Kelly,  31  Ala.  59;   Robinson  v.  Schley,  6  Ga.  526. 

B38  Turner  v.  Scott,  51  Pa.  St.  126;  Frederick's  Appeal,  52  Pa.  St.  338;  Cofif- 
man  v.  Coffman,  85  Va.  459,  8  S.  E.  672. 

6  88  Ante,  p.  381. 

B40  Jackson  v.  De  Lancey,  11  Johns.  (N.  Y.)  365;  Rossetter  v.  Simmons,  6 
Serg.  «fe  R.  (Pa.)  452.  But  see  Stump  y.  Deneale,  2  Cranch,  C.  C.  640,  Fed 
Cas.  No.  13,560. 

641  Ante,  pp.  36,  48. 

B42  Swift  V.  Lee,  65  111.  336;  Kilburn  v.  Dodd  (N.  J.  Ch.)  80  Atl.  868;  Me- 
Aleer  v.  Schneider,  2  App.  D.  C.  4«1;  Asten  v.  Asten  [1894]  3  Ch.  260.  A  mis- 
take in  the  number  of  the  township  has  been  held  not  to  vitiate.  I'riest  y. 
Lackey,  140  Ind.  399,  39  N.  E.  54. 

643  As  to  residuary  devises,  see  Smith  r.  Saunders,  2  W.  Bl.  736. 


474  TITLE.  (Ch.  16 

"liouse"  has  been  held  to  be  equivalent  to  "messuage,"  and  to  include 
not  only  the  building  itself,  but  the  land  appurtenant  thereto  with- 
in the  curtilage,  and  other  buildings  upon  the  land/**  So  the 
word  'T3arn"  has  been  held  to  carry  with  it  the  land  on  which  it 
stood.^*"  And  the  term  "homestead"  would  be  sufficient  in  a  de- 
vise to  transfer  the  property  occupied  as  such."**®  So,  too,  a  devise 
of  the  income  of  land  passes  the  land  itself*^ 

Wliat  can  he  Devised. 

The  term  "devise"  applies  only  to  real  estate;  when  personal  prop- 
erty is  transferred  by  will  the  technical  term  proper  is  "bequeath," 
Any  interest  in  real  property  may  be  devised,  even  possibilities,  if 
the  person  who  is  to  take  is  known."^*^  So  a  right  of  entry  may 
be  given  by  will.''*®  Property  acquired  after  the  execution  of  the 
will  may  pass  in  several  states  by  that  will  if  such  appears  to  be 
the  intention  of  the  testator.^^"  But  in  other  states  the  common- 
law  rule  to  the  contrary   has  been  followed.^ ''^ 

What  Law  Governs  Devises. 

Wills  affecting  real  property  are  governed  by  the  lex  loci,  not 
by  the  law  of  the  place  where  the  testator  is  domiciled  at  the  exe- 
cution of  the  will  or  at  his  death. ^'^^     The  same  rule  applies  to 

84  4  Rogers  v.  Smith,  4  Pa.  St.  93;  Otis  v.  Smith,  9  Pick.  (Mass.)  293.  But 
see  Elliot  v.  Carter,  12  Pick.  (Mass.)  437;    Leonard  v.  White,  7  Mass.  6. 

545  But  not  more  than  necessary  for  its  complete  enjoyment.  Bennet  v. 
Bittle,  4  Rawle  (Pa.)  339. 

540  Ford  V.  Ford,  70  Wis.  19,  33  N.  W.  188;  Hopliins  v.  Grimes,  14  Iowa,  73. 

64  7  Reed  v.  Reed,  9  Mass.  372;    Fox  v.  Phelps,  17  Wend.  (N.  Y.)  402. 

64  8  Pond  V.  Bird,  10  Paige  (N.  Y.)  140;  Thompson's  Lessee  v.  Hoop,  6  Ohio 
St.  480. 

54  9  1  Redf.  Wills,  392. 

6  50  Webb  v.  Archibald  (Mo.  Sup.)  28  S.  W.  80;  Briggs  v.  Briggs,  69  Iowa, 
617,  29  N.  W.  632;  Morey  v.  Sohier,  63  N.  H.  507,  3  Atl.  636.  And  see  Stim. 
Am.  St.  Law,  §  26.34. 

651  Jackson  v.  Potter,  9  Johns.  (N.  Y.)  312;  Girard  v.  Mayor,  etc.,  4  Rawle 
(Pa.)  323;  Parker  v.  Cole,  2  J.  J.  Marsh.  (Ky.)  503.  For  devises  held  insuf- 
ficient to  pass  after  acquired  realty,  see  Price's  Appeal,  169  Pa.  St.  294,  32 
Atl.  455;  Webster  v.  Wiggin  (R.  I.)  31  Atl.  824;  McAleer  v.  Schneider,  2 
App.  D.  C.  461. 

552  White  V.  Howard,  46  N.  Y.  159;  Richards  v.  Miller,  62  111.  417;  Kerr  v. 
Moon,  9  Wheat.  565, 


§  283)  DEVISE.  475 

chattel  interests  in  real  property,  although  such  interests  are  for 
most  purposes  treated  as  personal,  and  go  to  the  personal  repre- 
sentative on  the  death  of  the  one  intestate.''^'  In  many  states  a 
will  executed  according  to  the  law  of  another  state,  where  the 
testator  is  domiciled,  is  sufficient  to  pass  real  property  within  the 
state."*^*  The  validity  of  the  will  is  not  governed  by  the  laws  in 
force  at  the  death  of  the  testator,  but  by  those  which  were  in 
force  when  the  will  was  made."^^  In  many  cases  this  is  a  rule 
prescribed  by  the  statutes  which  make  the  change  in  the  former 
law."* 

Nature  of  Title  hy  Devise. 

One  who  takes  land  by  devise  takes  it  not  as  heir  of  the  testa- 
tor, but  'T)y  purchase."  "^  A  devise  takes  effect  at  once  on  the 
death  of  the  testator,  and  therefore  the  devisee  must  be  in  esse,  so 
as  to  be  competent  to  take  title."®  »One  cannot  be  made  to  take 
land  by  devise  against  his  will,  though  an  acceptance  is  presumed, 
in  the  absence  of  a  showing  to  the  contrary.^"®  Renunciation  of 
title  by  de\'ise  can  probably  only  be  made  by  deed,  because  his  title 
under  the  will  vests  at  once  on  the  death  of  the  testator,  and  no 
entry  by  the  devisee  is  necessary  to  perfect  it.^^**  A  devisee  of 
land  takes  it,  of  course,  subject  to  all  liens  and  incumbrances  which 

BBS  Freke  v.  Carbery,  L-  R.  16  Eq.  461. 

B54  1  stim.  Am.  St  Law,  §  265G. 

BBS  Taylor  v.  Mitchell,  57  Pa.  St.  209;  Mullen  v.  M'Kelvy,  5  Watts  (Pa.) 
399;  Mullock  v.  Souder,  5  Watts  &  S.  (Pa.)  198.  A  will  void  at  the  time  It 
is  executed  will  not  become  effectual  by  a  subsequent  change  in  the  law. 
Lane's  Appeal,  57  Conn.  182,  17  Atl.  926. 

BB6  Lawrence  v.  Hebbard,  1  Bradf.  Sur.  (N.  Y.)  252. 

BB7  Bear's  Case,  1  Leon.  112;  Scott  v.  Scott,  Amb.  383.  Cf.  Davis  v.  Kirk, 
2  Kay  &  J.  391.  But  not  when  land  is  devised  to  one  to  whom  it  would 
descend.  Clerk  v.  Smith,  1  Salk.  241;  Allen  v.  Heber,  1  W.  Bl.  22;  Hurst  v. 
Winchelsea,  Id.  187;  Chaplin  v.  Leroux,  5  Maule  &  S.  14;  Doe  v.  Timins, 
1  Barn.  «&  Aid.  530.  But  see  Biederman  v.  Seymour,  3  Beav.  3GS.  Contra, 
Ellis  V.  Page,  7  Cush.  (Mass.)  161. 

688  Ex  parte  Fuller,  2  Story,  327,  Fed.  Cas.  No.  5,147;  Ives  v.  Allyn,  13  Vt. 
629. 

BB9  Pen-y  v.  Hale,  44  N.  H.  363. 

B60  Webster  v.  Oilman,  1  Story,  499,  Fed.  Cas.  No.  17,335;  Graves  v.  Graves' 
Ex'r  (Wis.)  63  N.  W.  271.    Cf.  Hamilton  v.  Ritchie  [1894]  App.  Cas.  310. 


476  TITLE.  (Ch.  16 

may  exist  on  the  land,  and  subject  also  to  the  right  to  the  testator's 
creditors  to  enforce  their  claims  against  it."^ 

Revocation  of  Devises  hy  Alteration  of  Estate. 

With  the  general  subject  to  the  revocation  of  wills  we  have  no 
concern  here,  but  certain  rules  relative  to  the  revocation  of  par- 
ticular devises  after  they  are  made  will  be  considered.  If  the  tes- 
tator, after  the  execution  of  his  will,  sells  the  land  devised,  such  sale 
is  a  revocation  of  that  devise.""  A  contract  to  sell,  which  is  en- 
forced by  an  action  for  specific  performance  after  the  testator's 
death,  has  the  same  effect '^^^  If  part  only  of  the  land  is  sold, 
it  operates  as  a  revocation  pro  tanto."^"*  A  mortgage,  however, 
on  land  devised  is  not  a  revocation  of  the  devise.''^*  Nor  is  a  par- 
tition of  land  held  in  joint  ownership. "*««  This  effect  is  produced 
only  when  the  estate  of  the  testator  is  wholly  divested.  But  the 
devisee  would,  of  course,  take  only  the  equity  of  redemption  where 
the  land  devised  had  been  mortgaged."^"  If,  after  conveying  land 
which  has  been  devised,  the  testator  subsequently  buys  back  the 
same  property,  at  common  law  the  devise  was  not  thereby  made 
operative  again,"®  but  the  rule  is  now  otherwise  in  a  number  of 
states.  In  some  states  now,  by  statute,  a  change  in  the  estate  of 
the  testator  does  not  revoke  a  devise,  unless  the  estate  of  the  tes- 
tator is  wholly  divested.'^««  The  deed  which  is  to  revoke  a  devise 
must  be  lawful  and  valid.  If  it  is  obtained  by  fraud,  or  at  the 
time  of  its  execution  the  grantor  is  incompetent,  it  does  not  af- 

»«i  Hattersley  v.  Bissett,  52  N.  J.  Eq.  693,  30  Atl,  86;  Hyde  v.  Heller,  10 
Wash.  58(5,  3'J  Pac.  249. 

062  Walton  V.  Walton,  7  Johns.  Ch.  (N.  Y.)  258;  Adams  v.  Winne,  7  Paige 
(N.  Y.)  97;    Bosley  v.  Wyatt,  14  How.  390. 

603  Brush  V.  Brush,  11  Ohio,  287;  Wells  v.  Wells,  35  Miss.  638;  Walton  v. 
Walton,  7  .Johns.  Ch.  (N.  Y.)  258. 

664  4  K(>ut,  Comm.  528,  529. 

66  5  The  devisee  talies  the  land  subject  to  the  mortgage.  Tucker  v.  Thurstan, 
17  Ves.  131. 

666  Brydges  v.  Duchess  of  Chandos,  2  Ves.  Jr.  417;  Barton  v.  Croxall,  Tarn. 
164.    Nor  is  a  lease  a  revocation.    Hodgkinsou  v.  Wood,  Cro.  Car.  23. 

687  See  ante.  p.  205. 

668  Marwood  v.  Turner,  3  P.  Wms.  163;  Goodtitle  v.  Otway,  2  H.  Bl.  516; 
Cave  V.  Holford,  3  Ves.  650. 

»«»  1  Stim.  Am.  St.  Law,  §  2810. 


§  283)  DEVISE.  477 

feet  a  previous  devise.'^"  But  an  intention  to  revoke  a  devise  by 
an  alteration  in  the  testator's  estate  may  be  shown  by  evidence 
in  or  out  of  the  conveyance."^^  A  general  devise,  as  of  "my  land," 
is  defeated  if  the  testator  parts  with  all  his  land,  but  revives  when 
he  acquires  other  land  in  states  where  after-acquired  property  pass- 
es by  a  general  devise.^^* 

Lapsed  D&iyiaes. 

By  the  niles  of  the  common  law,  if  a  devisee  dies  before  the  tes- 
tator, the  devise  lapses,  and  cannot  be  claimed  by  the  devisee's 
heirs.  It  goes  to  the  heir  of  the  testator,  and  not  to  the  residuary 
devisee.*  This  is,  however,  in  some  states  now  otherwise  by  stat- 
utory change,  and  the  residuary  devisee  takes  to  the  exclusion  of 
the  heir.f  In  many  states  also  the  statutes  declare  that,  when  a 
devise  is  to  a  child  or  a  descendant  of  the  testator,  the  devise  shall 
not  lapse  if  such  descendant  dies  leaving  issue  who  survive  the  tes- 
tator, and  in  other  states  there  is  no  lapse  in  any  case.!  Even  at 
common  law  a  demise  of  an  estate  to  be  held  in  joint  tenancy  does 
not  lapse  on  the  death  of  one  of  the  joint  tenants,  even  as  to  his 
share,  because  the  rule  of  survivorship  vests  such  share  in  the 
co-tenant.||  But  if  the  estate  was  a  tenancy  in  common,  there  would 
be  a  lapse  of  the  share  of  any  co-tenant  on  his  death.**  When  a 
devise  is  to  a  class,  as  to  "children"  of  the  testator,  there  is  no  lapse, 

B70  Graiiam  v.  Burch,  47  Minn.  171,  49  N.  W.  697;  Rich  v.  Gilkey,  73  Me. 
695;   Hawes  v.  Wyatt,  3  Brown,  Ch.  156. 

BTiHocker  v.  Gentry,  3  Mete.  (Ky.)  463;  WickliCfe's  Ex'rs  v.  Preston,  4 
Mete.  (Ky.)  178. 

B7  2  See  McNaughton  v.  McNaughton,  34  N.  Y.  201. 

*  Van  Beuren  v.  Dash,  30  N.  Y.  393;  Moore  v.  Dimond,  5  R.  I.  121.  A  devise 
to  a  charity  will  lapse  if  the  institution  ceases  to  exist  before  the  testator's 
4eath.  See  Rymer  v.  Stanfleld  [1895]  1  Ch.  19;  Merrill  v.  Hayden,  86  Me. 
133,  29  Atl.  949. 

1 1  Stim.  Am.  St.  Law,  §  2822.  See  St.  Paul's  Church  v.  Attorney  (Jeneral, 
164  Mass.  188.  41  N.  E.  231. 

X  1  stim.  Am.  St.  Law,  §  2823. 

II  Dow  V.  Doyle,  103  Mass.  489;  Jackson  v.  Roberts,  14  Gray  (Mass.)  .540; 
Putnam  v.  Putnam,  4  Bradf.  Sur.  (N.  Y.)  308;  Anderson  v.  Parsons,  4  Me.  480; 
Luke  V.  Marshall,  5  J.  J.  Marsh.  (Ky.)  353. 

**  Horton  v.  Earle,  162  Mass.  448,  38  N.  E.  1135;  Morse  v.  Mason,  11  Allen 
(Mass.)  36;    Van  Beuren  v.  Dash,  30  N.  Y.  393. 


478  TITLE.  (Ch.  16 

but  the  suryivors  take  the  share  of  the  one  deceased."^'  The  lapse 
of  a  particular  estate  does  not  destroy  remainders  which  depend 
thereon,  if  they  can  take  effect  at  once;  that  is,  at  the  death  of 
the  testator."^* 

DESCENT. 

284.  The  title  to  the  real  property  of  an  intestate  descends 
to  certain  persons  designated  by  law,  called  heirs. 
The  acquisition  of  title  by  descent  is  governed  by 
the  following  rules: 

(a)  Only  estates  of  inheritance  go  to  the  heirs  (p.  479). 

(b)  Posthumous  children  may  inherit  (p.  480). 

(c)  In  most  states  an  illegitimate  child  inherits  from  its 

mother  and  from  its  father,  when  acknowledged  or 
legitimized  by  marriage  (p.  480). 

(d)  Advancements  are  deducted  from   the   share   of  the 

person  advanced  (p.  481). 

(e)  By  the  common  law,  inheritance  is  governed  by  cer- 

tain canons  of  descent  w^hieh  are  in  force  in  the 
United  States  in  a  more  or  less  modified  form  (p. 
482). 

(f)  If  an  intestate  leaves  no  heirs,  his  lands  escheat  to 

the  state  (p.  485). 

Title  by  descent  is  a  matter  which  is  regulated  in  each  state  by 
the  local  statutes,  and  in  no  two  states  are  the  statutes  of  descent 
exactly  the  same.  Titles  arising  by  descent  must  be  examined 
with  reference  to  the  law  as  it  existed  at  the  death  of  the  owner. 
The  statute  of  the  several  states  governing  descent  are  at  the  pres- 
ent time  subject  to  such  frequent  changes  that  no  attempt  to  give 
any  detail  as  to  the  statutes  is  feasible.''^''     Title  by  descent  is,  like 

878  Magaw  V.  Field,  48  N.  Y.  6G8:  Downing  v.  Marshall,  23  N.  Y.  3G6; 
Schafifer  v.  Kettell,  14  Allen  (Mass.)  528;    Yeates  v.  Gill,  9  B.  Mon.  (Ky.)  203. 

674  Lawrence  v.  Hebbard,  1  Bradf.  Sur.  (N,  Y.)  252;  Goodall  v.  McLean,  2 
Bradf.  Sur.  (N.  Y.)  306. 

67 B  For  an  exhaustive  discussion  of  statutes  regulating  descent,  see  1  Dem- 
bitz,  Land.  Tit.  c.  4. 


§   284)  DESCENT.  479 

title  by  devise,  governed  by  the  lex  loci; "'  that  Is,  the  law  of  the 
state  in  which  the  land  is  located  determines  the  manner  in  which 
it  shall  descend  to  the  heirs  of  its  intestate  owner.  These  statutes, 
though  they  differ  in  the  minor  details,  are  all  founded  on  the  Eng- 
lish statute  of  descent,  which  was  taken  largely  from  the  civil  law. 
The  owner  of  land  may  determine  to  whom  it  shall  pass  at  his  death 
by  means  of  a  will.  If,  however,  he  does  not  make  a  will,  the  law 
determines  for  him  the  division  of  his  land  among  his  heirs,  or 
rather  it  selects  those  heirs.  An  ancestor  is  one  from  whom  land 
descends,  and  an  heir  is  one  to  whom  land  descends.  It  may  be 
that  an  ancestor  is  really  a  descendant  of  the  heir,  as  where  a  father 
inherits  from  a  son."^"  Persons  who  take  under  a  will  are  not 
heirs.  "'^^ 

What  Descends  to  JETeirs. 

The  word  "descent"  is  applied  only  to  real  property.  The  per- 
sonal property  of  one  who  has  died  intestate  is  said  to  be  "distrib- 
uted." "'^^  All  the  estates  of  inheritance  of  one  who  had  died  in- 
testate descend  to  his  heirs,  unless  disposed  of  during  his  life.^*° 
The  heirs,  of  course,  take  no  rights  in  life  estates  held  by  the  an- 
cestor unless  they  be  estates  per  autre  vie,  so  limited  that  the  heirs 
take  the  remainder  of  such  estates.^ *^     We  have  seen  that  chattels 

87  8  Darby's  Lessee  v.  Mayer,  10  Wheat.  465;  Williams  v.  Kimball,  35  Fla. 
49.  16  South.  783. 

B7  7  Pricliett's  Lessee  v.  Parker,  3  Ohio  St.  394. 

BT8  In  re  Donahue's  Estate,  36  Cal.  329.  An  heir  apparent  Is  one  whose 
right  of  inheritance  is  indefeasible,  provided  he  outlives  the  ancestor;  for  in- 
stance, under  rules  of  primogeniture,  the  eldest  son  or  his  issue,  who  must  be 
the  heir  to  the  father  whenever  he  happens  to  die.  An  heir  presumptive  Is 
one  who,  if  the  ancestor  should  die  immediately,  would,  under  present  cir- 
cumstances, be  his  heir,  but  whose  right  of  inheritance  may  be  defeated 
by  the  contingency  of  some  nearer  heir  being  born;  for  example,  a  brother 
or  nephew,  whose  presumptive  succession  may  be  destroyed  by  the  birth  of 
a  child.  2  Bl.  Comm.  208.  Heirs  do  not  take  as  purchasers.  Godolphin  v. 
Abingdon,  2  Atk.  57. 

67  9  Lincoln  v.  Perry,  149  Mass.  368,  21  N.  E.  671;  In  re  Donahue's  Estate, 
36  Cal.  329;  Swaine  v.  Burton,  15  Ves.  365.  In  some  states  the  distinction 
between  descent  and  distribution  no  longer  exists.  See  1  Dembitz,  Land 
Tit.  204. 

680  See  ante,  34. 

681  See  ante,  p.  67. 


480  TITLE.  (Ch.  16 

real  do  not  descend  to  the  heirs,  but  go  to  the  personal  representa- 
tives.''*^ When  the  land  of  the  decedent  is  subject  to  a  right  of 
curtesy,  dower,  or  homestead,  in  states  where  these  are  only  life 
interests,  the  land  descends  to  the  heir  subject  to  these  rights.'^*' 
The  heii  takes  the  land  subject  also  to  any  claims  Avhich  the  cred- 
itors of  the  intestate  may  have  on  it  for  the  satisfaction  of  their 
demands.''^* 

Posthumous  Children. 

Posthumous  children  are  those  who,  at  the  death  of  their  father, 
are  en  ventre  sa  mere,  that  is,  those  who  are  conceived  but  not 
born.  By  the  early  common  law  such  children  could  not  inherit,"*'' 
but  the  disability  does  not  exist  in  the  United  States,"*'  though  in 
some  states  it  has  been  removed  only  as  to  children  of  the  intestate, 
and  does  not  apply  to  collateral  heirs. "^^  In  a  number  of  states  it 
is  provided  by  statute  that  the  child  must  be  bom  within  ten 
months  after  the  death  of  the  intestate  in  order  to  inherit.""  A 
disposition  of  the  property  before  such  a  child  is  bom  will  be  bind- 
ing on  the  child,  and  the  title  will  not  be  avoided  as  to  a  purchaser, 
though  the  child  can  claim  its  share  in  the  proceeds  of  the  sale,  as 
against  the  other  heirs."*' 

Illegitimate  Children. 

Illegitimate  children  are  those  who  are  born  out  of  lawful  wed- 
lock. At  common  law  such  a  child  is  the  heir  of  no  one,  and  can 
have  no  heirs  save  those  of  his  body."^°     Kow,  in  most  states,  an 

682  Ante,  p.  2. 

68  3  See  ante,  pp.  80,  102,  115. 

5  84  Belton  V.  Summer,  31  Fla.  139,  12  South.  371;  Merrill  v.  Daffln,  24  Fla. 
320,  4  South.  80G;  Bushby  v.  Dixon,  3  Bam.  &  0.  298;  Stainback  y.  Harris, 
11.5  N.  C.  100,  20  S.  E.  277. 

6  8  5  But  It  is  changed  now  in  England.  Goodale  v.  Gawthome,  2  Smale 
&  G.  375;   Richards  v.  Richards,  Johns.  Eng.  Ch.  754. 

B86  1  stim.  Am.  St.  Law,  §§  2S44,  3136. 
6  87  1  Dembitz,  Land  Tit.  228. 

5  83  1  stim.  Am.  St.  Law,  §  3136. 

6  89  But  see  where  the  child  is  bom  before  the  sale.  Massle  v.  Hiatt's 
Adm'r.  82  Ky.  314. 

690  Cooley  v.  Dewey,  4  Pick.  (Mass.)  93;  Bent's  Adm'r  v.  St.  Yram,  30  Mo. 
2G8;  Hicks  v.  Smith,  04  Ga.  809,  22  S.  E.  153;  Stover  v.  Boswell's  Heir,  3 
Dana  (Ky.)  233.    The  issue  of  void  marriages  are  in  some  states  legitimate. 


§    284)  DESCENT.  481 

Illegitimate  cMId  inherits  from  the  mother  equally  with  legitimate 
children,''®^  and  may  take  through  the  mother.  In  many  states 
also  illegitimate  children  inherit  from  the  father  if  they  have  been 
acknowledged  by  him.  In  some  they  take  from  the  father  and 
mother  when  there  are  no  other  heirs;  that  is,  they  take  only  to 
prevent  escheat.  In  a  few  states  illegitimate  children  inherit  from 
brothers  and  sisters,  and  in  most  states  the  mother  inherits  from  an 
illegitimate  child.  In  many  states  a  subsequent  marriage  of  the 
parents  legitimizes  the  children,  and  makes  them  capable  of  inher- 
iting, like  children  born  in  lawful  wedlock.''"* 

Advancerrtents. 

By  the  doctrine  of  advancements,  when  a  lineal  heir  receives  a 
gift  or  devise  by  way  of  portion  or  settlement  in  life,  the  amount 
so  received  is  deducted  from  the  share  which  that  heir  would  other- 
wise receive  from  the  ancestor.^®'  This  rule  applies  only  when  the 
advancement  comes  in  the  direct  line,  and  not  when  it  comes  from  a 
collateral;  that  is,  it  applies  to  children  and  grandchildren.'^^*  The 
advancement  is  valued  at  the  time  it  is  given. ^^^  If  the  value  ex- 
ceeds the  share  which  the  person  advanced  would  otherwise  receive 
as  heir,  he  takes  nothing  as  heir.     If  it  is  less  than  that,  he  receives 

Green  v.  Green,  126  Mo.  17,  28  S.  W.  752.  As  to  the  legitimacy  of  children 
born  after  separation  of  the  parents,  see  McNeely  v.  McNeely,  47  La,  Ann. 
1321,  17  South.  928. 

»»i  See  In  re  Waesch's  Estate,  16G  Pa.  St.  204,  30  Atl.  1124. 

B9  2  1  stim.  Am.  St.  Law,  §§  3150-3155;  Dembitz,  Land  Tit  279.  But  see 
Hatch  V.  Ferguson,  15  C.  O.  A.  201,  68  Fed.  43.  Some  statutes  provide  that 
children  born  to  persons  living  together  as  man  and  wife  shall  be  legitimate. 
In  re  Matthias'  Estate,  63  Fed.  523.  As  to  evidence  of  legitimacy,  see  In  re 
Pickens'  Estate,  163  Pa.  St.  14,  29  Atl.  875;  Lavelle  v.  Corrignio,  86  Hun,  135, 
33  N.  Y.  Supp.  376;  Scanlon  v.  Walshe,  81  Md.  118,  31  Atl.  498;  Jackson  v. 
Jackson,  SO  Md.  176,  30  Atl.  752. 

693  1  Stim.  Am.  St.  Law,  §§  3160-3168.  Money  expended  In  education  Is  not 
an  advancement.  Brannock  v.  Hamilton,  9  Bush  (Ky.)  446.  But  see  Kent  v. 
Hopkins,  86  Hun,  611,  33  N.  Y.  Supp.  767. 

694  Beebe  v.  Estabrook,  79  N.  Y.  246;  Simpson  v.  Simpson,  114  111.  603,  4  N. 
E.  137,  and  7  N.  E.  287;  Parsons  v.  Parsons  (Ohio  Sup.)  40  N.  E.  165.  An  ad- 
vancement may  exclude  from  participation  in  the  real  estate  and  not  In  the 
personalty.     Palmer  v.  Culbertson,  143  N.  Y.  213,  38  N.  E.  109. 

69  8  Palmer  v.  Culbertson,  143  N.  Y.  213,  38  N.  E.  199;  Moore  v.  Burrow,  89 
Tenn.  101,  17  S.  W.  1035. 

KEAL  PROP. — 31 


4S2  TITLE.  (Ch.  16 

enough  of  the  estate  to  make  up  the  difiference.  In  some  states, 
however,  the  advancement  must  be  brought  into  hotchpot;  that  is, 
the  one  advanced  must  turn  what  he  has  received  back  into  the  corpus 
of  the  estate,  so  that  the  whole  may  be  divided,  otherwise  he  receives 
nothing  in  addition  to  the  advancement/®'  In  some  states  no  gift 
is  considered  an  advancement  unless  so  expressed  in  the  instrument 
of  transfer,  or  acknowledged  as  such  in  writing  by  the  person  ad- 
vanced. "^"^ 

Canons  of  Descent. 

At  an  early  period  in  the  history  of  the  common  law  certain  rules 
of  inheritance,  called  the  canons  of  descent,  were  formulated  by 
Lord  Chief  Justice  Hale,  and,  though  these  canons  have  been  much 
changed  as  far  as  descent  in  this  country  is  concerned,  they  are  at  the 
foundation  of  our  laws  of  inheritance,  and  often  have  to  be  resorted 
to  in  construing  statutory  provisions.  The  canons  are  stated  by 
Blackstone  in  the  following  form : 

Saine — Descending  and  Ascending  Lines. 

"The  first  rule  is  that  inheritances  shall  lineaJly  descend  to  the 
issue  of  the  person  who  last  died  actually  seised  in  infinitum,  but 
shall  never  lineally  ascend."  ''^»  This  rule  has  been  changed  in 
the  United  States,  and  persons  in  the  ascending  line,  such  as  father 
and  mother,  are  now  permitted  to  inherit."* 

Same — Preference  of  Males. 

"A  second  general  rule  or  canon  is  that  the  male  issue  shall  be 
admitted  before  the  female."  ""^  This  canon  has  not  been  adopted 
in  the  United  States,""^  except  that  in  some  states  the  paternal  kin 
in  the  ascending  line  are  preferred  to  the  maternal  kin  in  the  same 
degree.'"* 

888  1  stlm.  Am.  St  Law,  §  8163  B,  2. 

6  87  1  stim.  Am.  St.  Law,  §  31U2.     And  see  Murphy  r.  Murphy  (Iowa)  63  N. 
W.  697;    Bi-unson  v.  Henry  (Ind.  Sup.)  39  N.  B.  250. 
60  8  2  Bl.  Comm.  208. 
689  1  stim.  Am.  St.  Law,  §§  3109,  311L 
«oo  2  Bl.  Comm.  212. 
eoi  1  Stim.  Am.  St.  Law,  §  3132. 
«o2  1  Stim.   Am.  St.   Law,   §§  3107,  3117,  3121. 


§   284)  DESCENT.  488 

Same — Primogeniture. 

"A  third  rule  or  canon  of  descent  is  this:  that  where  there  are 
two  or  more  males,  in  equal  degree,  the  eldest  only  shall  inherit; 
but  the  females  all  together."  *°^  This  rule  of  primogeniture,  as  it 
is  called,  has  been  almost  wholly  abolished  in  the  United  States.^"* 
But  in  a  few  instances  the  statutes  which  have  changed  the  com- 
mon-law rules  of  descent  do  not  apply  to  remote  collaterals,  and 
consequently  the  common-law  rule  of  primogeniture  is  still  in  force. 
So,  in  some  states,  the  rule  still  applies  to  the  estate  of  a  trustee, 
and  in  Maryland  a  right  to  "elect"  in  partition — that  is,  to  have 
first  choice  among  the  several  shares — is  reserved  to  the  eldest 
male.®""^ 

Same — Per  Stirpes  and  Per  Capita. 

"A  fourth  rule  or  canon  of  descent  is  this:  That  the  lineal  de- 
scendants in  infinitum  of  any  person  deceased  shall  represent  their 
ancestor;  that  is,  shall  stand  in  the  same  place  as  the  person  him- 
self would  have  done  had  he  been  living."  ®°*  This  is  called  tak- 
ing per  stirpes,  and  is  not  the  rule  in  all  the  United  States.  In 
some  states  the  heirs  take  per  capita. ^*'^  When  the  heirs  take  per 
capita,  the  descendants  of  the  deceased  heir  take  the  same,  shares 
as  those  who  stand  in  the  same  degree  of  relationship  as  the  person 
deceased;  that  is,  if  there  were  two  sons  living,  and  three  children 
of  a  deceased  son,  if  they  take  per  capita,  each  would  have  one-fifth 
of  the  intestate's  real  property.  But  if  the  inheritance  was  per 
stirpes,  the  sons  would  take  one-third  each,  and  the  grandchildren 
would  have  each  one-third  of  their  father's  third. 

Same —  Collateral  Hei/rs  and  Ancestral  Lands. 

"A  fifth  rule  is  that,  on  failure  of  lineal  descendants  or  issue  of 
the  person  last  seised,  the  inheritance  shall  descend  to  his  collateral 
relation,  being  of  the  blood  of  the  first  purchaser,  subject  to  the 
three  preceding  rules."  *°*     Lineal  relations  ®°'  are  those  in  the 

«03  2  Bl.  Comm.  214.  eo«  2  Bl.  C!omm.  216. 

604  1  stim.  Am.  St  Law.  §  3132.  aoi  i  stim.  Am.  St.  Law,  §  3137. 

606  1  Dembitz,  Land  Tit  225.  608  2  Bl.  Comm.  220. 

609  Relationship  is  of  two  kinds,— by  consanguinity  and  by  affinity.  The 
former  is  relationship  by  blood,  as  that  of  father  and  son.  Relationship  bj 
affinity  is  that  which  arises  by  marriage,  as  husband  and  wife.  By  the 
common  law,  inheritance  was  only  by  consanguinity,  never  by  affinity.    But 


484  TITLE.  (Ch.  16 

ascending  or  descending  line,  such  as  father,  mother,  grandfather, 
grandmother,  son,  daughter,  grandson,  and  granddaughter.  Col- 
lateral relatives  are  those  which  are  neither  in  the  direct  ascending 
or  descending  series.  Examples  of  collateral  relatives  are  uncles, 
aunts,  nephews,  and  nieces.*^"  The  degrees  of  relationship  are  in 
most  states  calculated  according  to  the  civil-law  rules;  *^^  that  is, 
in  ascertaining  the  degree  of  relationship  between  two  persons  you 
count  up  from  the  intestate  to  the  common  ancestor  and  then  down 
to  the  collateral  kinsman.  In  this  way  a  father  is  related  in  the 
first  degree,  a  brother  or  a  grandfather  in  the  second  degree,  an 
uncle  or  nephew  in  the  third  degree.*^-  By  the  common-law  rules 
the  degrees  of  relationship  are  the  same  as  by  the  civil  law  for  all 
persons  in  the  direct  ascending  or  descending  line.  But  for  col- 
lateral kinsmen  the  degrees  are  calculated  from  the  common  an- 
cestor to  the  more  remote  descendant.  In  this  way  brothers  are 
related  in  the  first  degree,  while  a  nephew  and  an  uncle  are  related 
in  the  second  degree,  and  cousins  are  the  same.'^' 

In  many  states  a  distinction  is  made  in  the  descent  of  lands  be- 
tween, on  the  one  hand,  lands  which  the  ancestor  acquires  by  de- 
scent or  by  gift  or  devise  from  a  person  from  whom  the  lands  would 
have  descended  to  him,^^*  and,  on  the  other  hand,  lands  which  the 
ancestor  acquires  by  purchase,  including  devise  or  gift  fi*om  a 
stranger.  The  lands  embraced  in  the  former  class  are  called  an- 
cestral. In  the  states  where  this  distinction  is  recognized,  the 
inheritance  of  ancestral  lands  is  restricted  to  those  who  are  of  the 
blood  of  the  "first  purchaser,"  as  he  is  called;  that  is,  to  those  who 
can  trace  a  relationship  by  consanguinity  to  the  one  who  acquired 

in  most  of  our  states  a  husband  or  wife  inherits  all  or  part  of  the  real 
estate  of  a  decedent  when  there  is  no  issue  to  take,  in  addition  to  curtesy  or 
dower.    1  Stim.  Am.  St.  Law,  §§  3109,  3123. 

«io  2  Bl.  Comm.  202. 

611 1  Stim.  Am.  St.  Law,  §  3139. 

«i2  McDowell  V.  Addams,  45  Pa.  St.  430;  Ryan  v.  Andrews,  21  Mich.  229; 
McCraeken  v.  Rogers,  6  Wis.  278;  Martindale  v.  Kendrick,  4  G.  Greene 
(Iowa)  307. 

613  2  Bl.  Comm.  206. 

«i*  Oliver  v.  Vance,  34  Ark.  564;  Galloway  v.  Robinson,  19  Ark.  396; 
Felton  v.  Billups,  2  Dev.  &  B.  (N.  C.)  308.  Cf.  Godbold  v.  Freestone,  3  Lev. 
406. 


§   284)  DESCENT.  485 

the  lands  by  purchase.  In  some  of  these  states,  persons  who  are 
not  of  the  blood  of  the  first  purchaser  cannot  inherit  at  all;  in 
others,  they  are  merely  postponed.®^" 

Smne —  Wliole  and  Half  Blood. 

"A  sixth  rule  or  canon  *  *  *  is  that  the  collateral  heir  of  the 
person  last  seised  must  be  his  next  collateral  kinsman  of  the  whole 
blood."  ®^*  By  whole  blood  it  is  meant  that  the  heir  and  the  intestate 
are  descendants  from  the  same  pair  of  ancestors.  Relationship  by  the 
half  blood  would  be  when  there  was  only  one  ancestor  in  common,  as 
where  the  two  persons  were  descendants  of  the  same  father,  but  of 
different  mothers.  The  rule  of  the  common  law  as  given  above  has 
been  changed  in  all  states.* ^^  As  to  lands  not  deemed  ancestral,  the 
collaterals  of  the  half  blood  are  nowhere  excluded  altogether  from  the 
inheritance,  though  they  are  postponed  or  given  lesser  shares  than 
the  whole  blood.®^*  As  to  ancestral  lands,  they  are  in  most  cases 
where  the  distinction  betw^een  ancestral  and  other  lands  prevails  post- 
poned to  collaterals  of  the  whole  blood.' ^* 
Same — Preference  of  Hales  in  Collateral  Lines. 

"The  seventh  and  last  rule  or  canon  is  that  in  collateral  inherit- 
ances male  stock  shall  be  preferred  to  the  female  (that  is,  kindred  de- 
rived from  the  blood  of  male  ancestors,  however  remote,  shall  be  ad- 
mitted before  those  from  the  blood  of  the  female,  however  near), 
unless  where  the  lands  have  in  fact  descended  from  a  female."  ®^° 
This  rule  has  not  been  adopted  in  the  United  States.  WTiere,  as  was 
seen  in  discussing  the  second  canon,  there  is  a  postponement  of  the 
maternal  to  the  paternal  kin  in  the  ascending  line,  the  issue  of  such 
kin,  who  are  collateral  heirs  of  the  intestate,  take  without  any  dis- 
tinction between  males  and  females.®^^ 
Escheat. 

We  have  seen  what  provisions  the  law  makes  for  the  division  of  the 
lands  of  one  who  dies  intestate,  there  being  in  most  states  rights  of 

•  IB  1  Stim.  Am.  St.  Law,  §  3134. 

616  2  Bl.  Comm.  224.    Cf.  Doed  v.  Whiclielo,  8  Term  R.  21L 

617  1  Stim.  Am.  St.  Law,  §  3133. 

618  Petty  V.  Malier,  15  B.  Mon.  (Ky.)  591;   Milner  v.  Calvert,  1  Mete.  (Ky.) 
472;    Marlow  v.  King,  17  Tex.  177;  Hulme  v.  Montgomery,  31  Miss.  105. 

619  Den  V.  Jones,  8  N.  J.  Law,  340;    Childress  v.  Cutter,  16  Mo.  24. 
•-'o  2  Bl.  Comm.  234. 

•  «-  1  Stim.  Am.  St.  Law,  §  3121. 


486  TITLE.  (Ch.  16 

dower  or  curtesy  in  the  surviving  wife  or  husband,  and  the  remainder 
going  to  the  heirs  of  the  owner;  but,  if  no  such  heirs  can  be  found, 
the  land  escheats  to  the  state,'^*  subject  to  the  subsequent  claims  of 
heirs,  if  any  are  found.  In  some  states  there  is  no  limitation  on  the 
time  within  which  such  claims  may  be  brought  forward,  while  in 
others  various  periods  of  limitation  are  prescribed.*** 

JUDICIAL  PROCESS. 

285.  Title  to  real  property  may  be  acquired  by  virtue  of 

judicial  process, — 

(a)  By  conveyances  under  licenses  (p.  486). 

(b)  By  conveyances  under  decrees  (p.  488). 

(c)  By  tax  sales  (p.  490). 

(d)  By  condemnation  under  the  right  of  eminent  domain 

(p.  494). 

There  are  many  instances  where  the  title  to  land  is  transferred 
by  order  of  a  court.  Titles  acquired  in  this  way  are  often  spoken 
of  as  titles  by  involuntary  alienation.  In  some  cases  this  is  an  ac- 
curate enough  designation,  but  the  mental  attitude  of  the  owner  is 
immaterial.  The  validity  of  this  sort  of  titles  depends  on  whether 
the  proper  notices  to  the  parties  in  interest  have  been  given  and 
^the  requirements  of  procedure  complied  with  in  other  respects. 
In  some  cases  of  title  by  judicial  process,  the  order  of  the  court  is 
In  itself  suflScient  to  transfer  the  title.  In  other  cases  a  conveyance 
of  some  kind  is  ordered  by  the  court  to  be  executed  by  the  per- 
son holding  the  title,  or  by  some  officer  of  the  court. 

SA.ME— CONVEYANCES  UNDER  LICENSES. 

286.  Licenses  to  convey  lands  are  given  by  order  of  court 

in  the  following  cases: 
(a)  To   personal  representatives  to  convey  the   land   of 
decedents  (p.  487). 

62  2 1  stira.  Am.  St.  Law,  §§  1151,  3125.    This  Is  not  the  feudal  escheat,  as 
to  which  see  Johnsou  v.  Norway,  Winch,  37. 
623  1  stim.  Am.  St.  Law,  §  1154. 


§    286)  CONVEYANCES    UNDER    UCENSES.  487 

(b)  To  guardians  to   convey  the   land  of  persons  under 

disability  (p.  487). 

(c)  To  tenants  in  possession  to  convey  settled  estates,  in 

some  states  (p.  4s8), 

Conveyances  hy  Personal  Mepresentatwes. 

In  the  administration  of  the  estate  of  a  decedent  it  often  becomes 
necessary,  because  of  the  failure  of  the  personal  estate,  to  sell  part 
of  the  real  property  to  satisfy  the  claims  of  creditors  and  pay  the 
expenses  of  administration,  or  to  pay  legacies  which  the  testator 
has  given.  When  executors  are  given  a  power  to  sell  lands  by  the 
will  which  appoints  them,  the  sale  is,  of  course,  according  to  the 
intention  of  the  testator,  and  not  under  license  of  court.*^*  Per- 
sonal representatives  may  not  dispose  of  realty  without  an  order 
of  the  court.'*'  Notice  to  persons  interested  or  affected  by  the 
sale  must  be  given  before  an  order  can  be  obtained.'**  And  the 
other  formalities  prescribed  by  statute  must  be  followed."^ 

Convey a/nces  hy  Cuardians. 

In  treating  of  personal  capacity,  it  was  seen  that  many  persons 
could  hold  lands  who  had  no  power  to  convey  them.  But,  as  it  is 
often  necessary  for  the  interests  of  such  persons  that  some  dispo- 
sition be  made  of  their  lands,  as  that  the  lands  of  infants  or  insane 
persons  be  sold  to  provide  for  their  support,  their  guardians  are 
authorized,  on  presenting  the  matter  to  the  court  having  jurisdic- 
tion, to  make  the  necessary  conveyances.'*'     Certain  formalities, 

«24  White  V.  Moses,  21  Cal.  44;   Payne  v.  Payne,  18  Cal.  291. 

82  5  See  2  Dembitz,  Land  Tit.  1114;  First  Nat.  Bank  v.  Hanna,  12  Ind. 
App.  240.  39  N.  E.  1054.  And  cf.  Worthy  v.  Johnson,  8  Ga,  236;  Campbell 
V.  Knights,  26  Me.  224.  The  order  to  sell  must  describe  the  land.  Borders 
V.  Hodges,  154  111.  498,  39  N.  E.  597;  Melton  v.  Fitch,  125  Mo.  281,  28  S.  W. 
612. 

626  Rogers  V.  Johnson,  125  Mo.  202,  28  S.  W.  635;  Picard  v.  Moutross 
(Miss.)  17  South.  375. 

62  7  See  Durfee  v.  Joslyn,  101  Mich.  551,  60  N.  W.  39;  Melton  v.  Fitch,  125 
Mo.  281,  28  S.  W.  612;   Rodgers  v.  Rodgers'  Adm'r  (Ky.)  31  S.  W.  139. 

6  28  See  2  Dembitz,  Land  Tit.  §§  151,  152;  Bellamy  v.  Thornton,  103  Ala. 
404,  15  South.  831;  Williams  v.  Pollard  (Tex.  Civ.  App.)  28  S.  W.  1020.  An 
estate  in  remainder  may  be  sold.    Wallace  v.  Jones,  93  Ga.  419,  21  S.  B.  89. 


488  TITLE.  (Ch.  16 

such  as  filing  a  bond,'"  giving  notice,""  and  making  a  report,"* 
are  required. 

Conveyances  of  Settled  Estates. 

Closely  akin  to  sales  of  lands  of  persons  nnder  disability  are 
sales  of  settled  estates;  that  is,  when  the  alienation  of  land  in  the 
ordinary  ways  is  impossible  because  the  whole  ownership  is  divided 
between  life  tenants  and  remainder-men,  some  of  whom  may  be 
unborn  or  unascertained,  there  are  in  some  states  statutes  which 
permit  the  sale  of  such  lands,  and  the  investment  of  the  proceeds 
in  other  realty  under  the  same  limitations.  Such  sales  are  often 
desirable  when  the  lands  are  of  no  beneficial  value  to  the  life  ten- 
ants, or  are  subject  to  incumbrances.^'^  Sales  of  settled  estates 
cannot  be  made  unless  there  is  a  statute  authorizing  them."* 

SAME— CONVEYANCES  UNDER  DECREES. 

287.  The  principal  cases  in  \vrhich  the  title  to  land  is 
transferred  under  a  decree  of  court  are  the  follow- 
ing: 

(a)  Partition  proceedings  (p.  488). 

(b)  Decrees  for  specific  performance  (p.  488). 

(c)  Sales  on  execution  (p.  489). 

Partition. 

It  has  already  been  seen  that  partition  is  the  method  of  dividing 
joint  estates,  so  that  they  may  be  held  in  severalty,  and  that  par- 
tition may  be  had  against  the  will  of  the  co-tenants.  So,  too,  it 
has  been  seen  that  a  sale  will  be  ordered  when  the  land  cannot 
be  divided.®** 
Sjpe<i'ific  Performance. 

When  an  owner  of  land  has  made  a  binding  contract  to  convey 
real  property,  and  then  refuses  to  execute  a  conveyance,  a  court 

820  McGale  v.  McGale,  18  II.  I.  675,  129  Atl.  9G7. 

830  Garr  v.  Elble  (Ky.)  29  S.  W.  317. 

831  Swenson  v.   Scale   (Tex.   Civ.  App.)   2S   S.   W.   143.    The  sale   mast  be 
confirmed  by  the  court.    Lumpkins  v.  Johnson  (Ark.)  32  S.  W.  65. 

83  2  2  Dembltz,  Land  Tit.  §  15G.    And  see  Luttrell  v.  Wells  (Ky.)  30  S.  W.  10. 
88  8  Baker  v.  Baker,  1  Rich,  Eq.  (S.  C.)  392. 
•  84  Ante,  p.  340. 


§    287)  CONVEYANCES    UNDER    DECREES.  489 

of  equity  will  compel  him  to  do  so  by  a  decree  for  specific  per- 
formance/*" So  there  may  be  a  valid  contract,  founded  on  a  suflS- 
cient  consideration,"*  to  give  lands  by  will,  and  such  a  contract 
may  be  enforced  by  compelling  the  persons  holding  the  title  to  the 
lands  to  convey  to  the  one  to  whom  they  should  have  been  de- 
vised."^ 

Sales  on  Execution. 

At  common  law  a  man's  lands  were  not  liable  to  be  sold  for  his 
debts,*'^^  but  now,  in  all  of  our  states,  lands  can  be  sold  for  debts. 
Before  this  can  be  done,  however,  a  judgment  must  be  obtained,*'" 
and  a  writ  of  execution  must  be  issued.  The  sheriff  therc^upon  makes 
the  sale  and  executes  the  deed.®***  A  certain  period  within  which  the 
debtor  may  redeem  the  land  from  the  sale  is  usually  provided,'*^  The 
purchaser  is  said  to  take  an  estate  on  execution.**'^  It  has  already 
been  seen,  in  the  discussion  of  estates,  what  interests  in  real  property 
were  subject  to  sale  on  execution.'**  A  purchaser  at  an  execution 
sale  acquires  the  interest  of  the  judgment  debtor.'** 

635  Engle  V.  White  Olich.)  62  N.  W.  154;  Roberts  v.  Cambridge,  164  Mass. 
176,  41  N.  E.  230;  Prospect  Park  &  C.  I.  R.  Co.  v.  Coney  Island  &  B.  R.  Co., 
144  N,  Y.  152,  39  N.  E.  17;  Haydon  v.  Haydon  (Ky.)  27  S.  W.  975;  Wright 
T.  Brown,  116  N.  C.  26,  22  S.  E.  313;    Hoover  v.  Bucli  (Va.)  21  S.  E.  474. 

«36  Smith  V.  Pierce,  65  Vt.  200,  25  Atl.  1092;  Fuchs  v.  Fucbs,  48  Mo. 
App.  18. 

«3  7  Emery  v.  Darling,  50  Ohio  St.  160,  33  X.  E.  715. 

63  8  For  an  account  of  the  remedies  which  were  provided  at  different 
periods,  see  Digby,  Hist.  Real  Prop.  (4th  Ed.)  279. 

639  In  nearly  all  the  states  a  judgment  becomes  a  lien  on  the  Judgment 
debtor's  real  estate  as  soon  as  It  is  rendered  or  docketed.  See  2  Dembltz, 
Land  Tit.  §  165. 

640  Finch  v.  Turner  (Colo.  Sup.)  40  Pac.  505.  Higgins  v.  Bordages  (Tex. 
Civ.  App.)  28  S.  W.  350;    Diamond  v.  Turuer,  11  Wash.  189,  39  Pac.  379. 

6412  Dembitz,  Land  Tit.  1300.  And  see  Mcllwain  v.  Karstens,  152  111.  135, 
88  N.  E.  555;  Ritchie  v.  Ege,  58  Minn.  291,  59  N.  W.  1020;  Southern  Cali- 
fornia Lumber  Co.  v.  McDowell,  105  Cal.  99,  38  Pac.  627;  Smith  v.  Bank, 
102  Mich.  5,  60  N.  W.  438. 

64  2  As  to  estates  on  execution,  see  2  Washb.  Real  Prop.  (5th  Ed.)  31. 
«43  Ante,  pp.  39,  58,  149,  156,  205,  209,  274. 

644  G.irrett  v.  Wagner,  125  Mo.  450,  28  S.  W.  762;  Bramlett  v.  Wettin,  71 
Miss.  902,  15  South.  934;  Butler  v.  Fitzgerald,  43  Neb.  192,  61  N.  W.  040; 
Greenleaf  v.  Grounder,  86  Me.  298,  29  Atl.  1082. 


490  TITLE.  (Ch.  16 

Same — Effect  of  Reve^'sal  of  Judgment. 

Wliere  land  is  sold  aa  the  result  of  an  action,  and  the  judgment 
is  subsequently  reversed,  a  third  person,  who  has  purchased  the 
premises,  will  have  a  good  title, ^*'^  though,  if  one  of  the  parties  had 
been  the  purchaser,  such  would  not  have  been  the  case.®**  When  the 
purchaser  is  a  third  person,  the  defendant's  remedy  is  in  damages 
against  the  plaintiff. 

SAME— TAX  TITLES. 

288.  The  title  to  land  may  be  divested  for  failure  to  pay- 

taxes.     This  may  be 

(a)  By  forfeiture  to  the  state  (p.  490). 

(b)  By  sale  under  a  ministerial  proceeding  (p.  491). 

(c)  By  sale  under  a  judgment  obtained  in  a  judicial  pro- 

ceeding.    Such  a  proceeding  is  either 

(1)  In  personam  against  the  person  ow^ing  the  tax, 

or 

(2)  In  rem   against  the   land   on  -which  the  tax  is 

assessed  (p.  492). 

289.  The   owner  has   a  period   of  redemption   before  the 

tax  deed  is  issued  (p.  492). 

290.  The  purchaser  takes  in  some  states  only  the  tax  debt- 

or's interest  in  the  land;   in  other   states  he  takes 
the  whole  fee  (p.  493). 

JForfeiture. 

In  a  few  states  it  is  provided  in  the  statutes  regulating  the 
collection  of  taxes  that  land  on  which  the  taxes  are  in  arrears  may 
be  forfeited  to  the  state  after  certain  notices  have  been  given  to  the 
owner.'**    An  opportunity  is  given  the  owner  to  redeem  for  a  certain 

«*o  Whiting  t.  Banli,  13  Pet.  6;  Feger  v.  Keefer,  6  Watts  (Pa.)  297; 
Shultz  V.  Sanders,  38  N.  J.  Eq.  154,  293. 

8*6  Jackson  v.  Cad  well,  1  Cow.  (N.  Y.)  622.  Reynolds  v.  Harris,  14  Cal. 
677.  Tlie  same  is  true  of  a  purchase  by  the  plaintiff's  attorney.  Hays  v. 
Cassell,  70  111.  669;  or  by  his  wife,  Ivie  v.  Stringfellow's  Adm'r,  82  Ala. 
545,  2  South.  22. 

e*8  Black,  Tax  Titles  (2d  Ed.)  §§  194,  197.  See  Lasher  t.  McCreery,  66  Fed. 
834. 


§§  288-290)  TAX  TITLES.  491 

time  after  the  forfeiture.    If  redemption  is  not  made,  the  title  be- 
comes absolute  in  the  state,  and  need  not  be  followed  by  a  sale  of 
the  land.^*®    Statutes  providing  for  a  forfeiture  for  nonpayment  of 
taxes  are  strictly  construed.' ^^ 
Ministerial  Sale. 

In  most  states  smnmary  methods  of  proceeding  exist  for  the  sale 
of  lands  for  unpaid  taxes  which  authorize  the  proper  officers  to  ad- 
vertise the  land  for  sale  and  sell  it  after  a  certain  period  of  delin- 
quency. Such  proceedings  are  constitutional,  though  no  actual  notice 
of  the  sale  is  brought  home  to  the  owner.**^  When  a  public  officer 
sells  lands  for  taxes,  he  has  only  a  naked  power;  that  is,  one  not 
coupled  with  an  interest.  Therefore  his  authority,  which  comes  en- 
tirely from  the  statute,  must  be  strictly  followed.®"*^  In  fact,  the  re- 
quirements have  in  some  states  been  made  so  stringent  as  to  make  tax 
titles  in  all  cases  of  very  doubtful  validity.®"'  The  modern  tendency, 
however,  is  the  other  way,  and  a  reasonable  compliance  with  the  stat- 
ute is  sufficient.®"*  In  all  cases  of  sales  of  land  for  taxes  by  summary 
proceedings  it  should  be  remembered,  however,  that  the  proceeding 
is  in  itself  ex  parte,  and  no  necessary  steps  must  be  omitted,  or  the 
title  will  fail.  Therefore  payment  of  the  taxes  takes  away  the  power 
to  sell,®""  and  tender  of  payment  has  the  same  effect,  if  the  payment 
or  tender  is  made  by  one  entitled  to  pay  the  taxes.®"®    The  following 

8*9  Garner  v.  Anderson,  27  La.  Ann.  338;  Morrison  y.  Larkin,  26  La.  Ann. 
699;  Hall  v.  Hall,  23  La.  Ann.  135. 

650  Bennett  v.  Hunter,  9  Wall.  326;  Schenk  v.  Peay,  1  Dill.  267,  Fed.  Ca.s. 
No.  12.451. 

•  01  Kentucky  Railroad  Tax  Cases,  115  U.  S.  321,  6  Sup.  Ct  57. 

«B2  Cruger  v.  Dougherty,  43  N.  Y.  107;  Gaboon  v.  Coe,  57  N.  H.  556;  Mil- 
likan  v.  Patterson,  91  Ind.  515. 

653  Ferris  v.  Coover,  10  Gal.  589;  Wilsons  v.  Doe,  7  Leigh  O'a.)  22;  Brown 
V.  Veazie,  25  Me.  359. 

eB4  Jenkinson  v.  Auditor  General  (Mich.)  62  N.  W.  163;  Mosely  v.  Roily, 
126  :Mo.  124,  28  S.  W.  895;  Bedgood  v.  McLain,  94  Ga.  283,  21  S.  E.  529; 
Stieff  V.  Hartwell,  35  Fla.  606,  17  South.  899;  Henderson  v.  EUerman,  47 
La.  Ann.  300,  16  South.  821. 

855  Reading  v.  Finney,  73  Pa.  St.  407;  Joslyn  v.  Rockwell,  128  N.  Y.  334,  28 
N.  E.  604;  Jackson  v.  Morse,  18  Johns.  (N.  Y.)  441;  Rayner  v.  Lee,  20  Mich. 
384;    Sprague  v.  Coenon,  30  Wis.  209. 

fi56Tacey  v.  Irwin,  18  Wall.  549;  Schenk  v.  Peay,  1  Dill.  207,  Fed.  Gas, 
No.  12,451;    Loomis  v.  Pingree,  43  Me.  299. 


492  TITLE.  (Ch.   1(> 

general  rule  is  given  by  Mr.  Black  •"  for  determining  when  there  has 
been  a  sufficient  compliance  with  the  statute:  "When  the  statute 
under  which  the  land  is  sold  for  taxes  directs  an  act  to  be  done,  or 
prescribes  the  form,  time,  and  manner  of  doing  an  act,  such  an  act 
must  be  done  in  the  form,  time,  and  manner  prescribed,  or  the  title  is 
invalid,  and  in  this  respect  the  statute  must  be  strictly,  if  not  literally, 
complied  with-  But  in  determining  what  is  required  to  be  done, 
the  statute  must  receive  a  reasonable  construction;  and  when  no 
particular  form  or  manner  of  doing  an  act  is  prescribed,  any  mode 
which  effects  the  object  with  reasonable  certainty  is  sufficient.  But 
special  stress  should  always  be  laid  upon  those  provisions  which  are 
designed  for  the  protection  of  the  taxpayer." 

Judicial  Sale. 

In  some  states  the  method  of  selling  land  for  taxes  by  summary 
proceedings  is  not  employed,  but  the  collector  of  taxes  is  required  to 
bring  an  action  in  a  court  before  any  power  is  acquired  to  sell  the  land 
of  the  person  owing  the  taxes.^^^  These  suits,  as  stated  in  the  black 
letter,  are  of  two  kinds.  If  against  the  person  who  owes  the  taxes, 
jurisdiction  of  the  person  must  be  acquired.  The  judgment,  when 
rendered,  is  a  lien  on  his  land,  which  may  be  enforced  by  execution. 
The  other  kinds  of  suits  proceed  against  the  land  itself,  as  though  the 
taxes  were  due  from  it,  and  notice  of  the  proceeding  to  the  owner 
of  the  land  may  be  constructive  only,  as  where  it  is  by  publication,^^* 
(hough  such  notice,  when  given,  must  contain  a  description  of  the 
'iand.«^°  In  this  kind  of  suit  the  land  is  ordered  to  be  sold,  and 
the  officer  making  the  sale  gives  a  certificate  of  purchase,  which, 
ufter  a  period  allowed  for  redemption,  entitles  the  holder  to  a  deed. 
Redemption  and  Tax  Deed. 

After  a  sale  of  lands  for  taxes,  the  owner  is  given  an  opportunity 
to  redeem  before  the  title  of  the  purchaser  becomes  absolute.'®^ 

6»T  Tax  Titles  (2d  Ed.)  §  155. 

6&8  2  Dembitz,  Land  Tit.  1334.  As  to  who  can  sue,  see  San  Diego  Co.  v. 
Southern  Pac.  R.  Co.,  108  Cal.  46,  40  Pac.  1052. 

6  50  Schmidt  v.  Niemeyer,  100  Mo.  207,  13  S.  W.  405;  Payne  v.  Lott,  90 
.Mo.  G76,  3  S.  W.  402.    But  see  Martin  v.  Parsons,  49  Cal.  95. 

600  Smith  V.  Kipp,  49  Minn.  119,  51  N.  W.  G56;  Vaughan  v.  Daniels,  98 
Mo.  230,  11  S.  W.  573;    Milner  v.  Shipley,  94  Mo.  106,  7  S.  W.  175. 

6C1  Black,  Tax   Titles   (2d   Ed.)   c.  23.    And   see  People  v.   Campbell,   143 


-§§  288-290)  TAX  TITLES.  493 

At  the  time  of  the  sale  the  purchaser  is  given  a  certificate  of  pur- 
chase. The  statutes  usually  provide  that  the  rights  of  a  purchaser 
under  a  certificate  may  be  assigned.^^*  Until  the  period  of  redemp- 
tion expires,  the  owner  is  entitled  to  the  possession  of  the  land  and 
to  its  profits.®®^  In  most  states  the  holder  of  a  certificate  of  pur- 
chase is  entitled  to  a  deed  on  the  expiration  of  the  period  of  redemp- 
tion,^^* but  in  some  states  a  foreclosure  of  the  right  of  redemption  is 
necessary,®^"  The  tax  deed,  when  issued,  must  contain  all  the  ele- 
ments required  by  the  statute,  and  show  by  its  recitals  a  complete 
performance  of  all  that  is  required  by  law,  before  a  sale  is  lawful ; 
such  as  authority,®®"  assessment,  and  delinquency.'®^  There  must 
^Iso  be  a  description  of  the  lands  sold.'®*  If  any  of  these  things  are 
wanting,  the  deed  cannot  be  reformed  in  equity.®®* 

Estate  Taken  hy  Purchaser. 

In  many  states  a  new  title  is  created  by  a  tax  sale,  and  all  con 
tingent  rights  in  the  land  are  cut  off,  though,  when  this  is  the  rule, 
a  remainder-man,  and  others  having  contingent  interests,  are  given 

N.  Y.  335,  38  N.  E.  300;  Douglass  v.  McKeever,  54  Kan.  767,  39  Pac.  703; 
Rich  V.  Braxton,  158  U.  S.  375,  15  Sup.  Ct  1006;  Stone  v.  Stone,  163  Mass. 
474,  40  N.  E.  897. 

«62  An  assignment  in  the  absence  of  such  a  statutory  authorization  would 
probably  be  void.  Billings  v.  McDermott,  15  Fla.  60;  Sapp  v.  Morrill,  8 
Kan.  677. 

663  Elliott  V.  Parker,  72  Iowa,  746,  32  N.  W.  494;  Mayo  v.  Woods,  31  Cal. 
■269. 

664  Wettig  v.  Bowman,  39  111.  416.    Cf.  Ives  v.  Lynn,  7  Conn.  505. 

66  6  Black,  Tax  Titles  (2d  Ed.)  §  383;  Alexander  v.  Thacker,  43  Neb.  494, 
61  N.  W.  738. 

666  Cogel  V.  Raph,  24  Minn.  194;  Madland  v,  Benland,  Id.  372;  Atklson 
v.  Improvement  Co.,  125  Mo.  565,  28  S.  W.  861;  Ward  v.  Montgomery,  57 
Ind.  276. 

667  Gilfillan  v.  Chatterton,  38  Minn.  335.  37  N.  W.  583;  Hubbard  v.  John- 
fion,  9  Kan.  632. 

668  Campbell  v.  Packard,  61  Wis.  88,  20  N.  W.  672;  Ellsworth  v.  Nelson,  81 
Iowa,  57,  46  N.  W.  740.  For  descriptions  held  sufficient,  see  Sibley  v.  Smith, 
2  Mich.  486;  Taylor  v.  Wright,  121  III.  455,  13  N.  E.  529;  Harris  v.  Curran, 
32  Kan.  580.  4  Pac.  1044;    Levy  v.  Ladd,  35  Fla.  391,  17  South.  635. 

•  69  Altes  V.  Hinckler,  36  111.  265;  Keepfer  v.  Force,  86  Ind.  81;  Bowers 
T.  Andrews,  52  Miss.  596.    Contra,  Hickman  v.  Kempner,  35  Ark.  505. 


494  TiTLK.  (Ch.  16 

an  opportunity  to  redeem  from  the  sale.®^°  If  those  having  such 
interest  do  not  redeem,  they  lose  their  rights.  Tliis  extends  even  to 
the  rights  to  dower  "^  and  homestead."^*  In  other  states  the  tax 
deed  passes  only  the  interest  of  the  person  assessed. '^^  Even  where 
this  rule  obtains,  the  rights  of  mortgagees  will  be  lost  if  the  land  is 
sold  for  taxes,"^*  and  in  the  same  way  judgment  liens  and  other 
rights  growing  out  of  and  depending  on  the  estate  of  the  one  owing 
the  taxes  are  cut  off.'" 

SAME— EMINENT  DOMAIN. 

291.  Under  the  right  of  eminent  domain,  land  belonging 
to  private  persons  may  be  taken  for  public  uses 
upon  compensation  being  made.  The  right  may  be 
exercised 

(a)  By  the  United  States  or  the  states. 

(b)  By  private  persons  or  corporations  duly  authorized. 

The  taking  of  land  under  the  right  of  eminent  domain  differs  from 
taxation  in  that  compensation  is  provided  to  the  owner  when  his  land 
is  taken  under  the  former.  Land  can  be  taken  under  this  power  only 
for  public  uses.  This,  however,  is  a  question  of  constitutional  law."' 
As  to  what  constitutes  a  taking,  and  as  to  what  will  be  an  additional 
burden  imposed  on  land  taken  under  this  power,  as  by  putting  a 
railway  on  lands  previously  taken  for  a  highway,  the  same  reference 
must  be  made.     Power  to  condemn  lands  under  the  right  of  eminent 

«To  Atkins  v.  Hinman,  7  111.  4.37;  Kunes  v.  McCIoskey,  115  Pa.  St.  461,  9 
Atl.  83;   Langley  v.  Chapin,  134  Mass.  82;  Jackson  v.  Babcock,  16  N.  Y.  246. 

671  Black,  Tax  Titles,  §  422.  But  that  the  wife  must  be  made  a  party 
to  a  tax  suit,  see  Blevins  v.  Smith,  104  Mo.  583,  16  S.  W.  213. 

•72  Shell  v.  Duncan,  31  S.  C.  547,  10  S.  E.  330. 

«73  Cross  v.  Taylor  (Ga.)  6  S.  E.  179;    Dyer  v.  Bank,  14  Ala.  622. 

874  Parker  v.  Baxter,  2  Gray  (Mass.)  185;  Becker  v.  Howard,  66  N.  T.  5; 
Fager  v,  Campbell,  5  Watts  (Pa.)  287. 

«75  Jenkins  v.  Newman.  122  Ind.  99,  23  N.  E.  683.  But,  If  the  land  Is  re- 
deemed by  the  owner,  the  judgment  lien  Is  not  affected.  Appeal  of  Singer 
(Pa.  Sup.)  7  Atl.  800.  The  lien  of  prior  taxes  is  also  divested  by  a  tax  sale. 
Huzzard  v.  Trego,  35  Pa.  St.  9;   Law  v.  People,  116  111.  244,  4  N.  E.  S45. 

•  7  6  See  Black,  Const.  Law,  355. 


§   291)  EMINENT   DOMAIN.  495 

domain  may  be,  and  often  is,  delegated  eitlier  to  private  persons  or 
to  corporations,  though,  it  is  usually  said  that  such  persons  or  cor- 
porations must  perform  some  public  function.*''^  The  provisions  in 
the  federal  and  state  constitutions  prohibiting  the  taking  of  a  per- 
son's property  without  due  compensation  cover  cases  of  eminent 
domain/^^  Damages  in  such  cases  are  in  some  states  assessed  by 
commissioners  and  in  others  by  juries.  It  is  generally  provided  that 
the  compensation  must  be  made  before  the  land  is  actually  taken. 
Any  property  is  subject  to  the  exercise  of  this  right,  even  including 
franchises."^®  The  United  States  may  condemn  lands  belonging  to  a 
state  as  vrell  as  if  owned  by  private  persons.®^"  But  when  the  United 
States  or  a  state  take  land  under  this  right,  they  must  make  compen- 
sation, the  same  as  other  persons."'* 

«T7  Beekman  v.  Railroad  Co.,  3  Paige  (N.  T.)  45;  Weir  v.  Railroad  Co., 
18  Minn.  155  (Gil.  139);  In  re  Theresa  Drainage  Dist.,  90  Wis.  301,  63  N. 
W.  288;  Secombe  v.  Railroad  Co.,  23  Wall.  108;  U.  S.  v.  Certain  Tract  of 
Land,  67  Fed.  869;   Jockheck  v.  Commissioners,  53  Kan.  780,  37  Pac.  021, 

«T8  Black,  Const,  Law,  366. 

«T9  Central"  Bridge  Corp.  v.  Lowell,  4  Gray  (Mass.)  474;  Com.  v.  Canal 
Co.,  66  Pa.  St  41;  West  River  Bridge  Co.  v.  Dix,  6  How.  507. 

•  80  Stockton  V.  Railroad  Co.,  32  Fed.  9.  A  state  may  condemn  property  of 
the  United  States.  U.  S.  v.  Railroad  Bridge  Co.,  6  McLean,  517,  Fed.  Cas.' 
No.  16,114;   U.  S.  v.  Chicago,  7  How.  185. 

681  For  statutory  provisions  on  eminent  domain,  see,  in  general,  1  Stlm. 
Am.  St.  Law,  S§  1140-1144. 


TABLE  OF  CASES  CITED. 


[THE  FIGURES  REFER  TO  PAGES.] 


V.  Cooper,  14G. 

Abbey  v.  Wheeler,  341. 

Abbey    Homestead  Ass'n  v.  WUlard, 

464. 
Abbiss  V.  Burney,  294,  323,  328, 
Abbott  V.  Allen,  443. 

V.  Berry,  .346. 

V.  Butler,  360. 

V.  Essex  Co.,  326. 

V.  Godfroy's  Heirs,  191,  247. 

V.  Kasson,  232. 

V.  Powell,  204. 

V.  Railway  Co.,  372. 

V.  Upton,  209. 

V.  Weekly,  354. 
Abbott  of  Sherbourne's  Case,  65. 
Abercrombie  v.  Riddle,  60. 
Absor  V.  French,  363. 
Achorn  v.  Jackson,  418. 
Acker  v.  Priest,  262. 
Ackerman  v.  Shelp,  354,  355. 
Ackerman's     Adm'rs     v.     Vreeland's 

Ex'r,  305. 
Ackland  v.  Lutley,  150. 
Ackless  V.  Seekright.  306. 
Ackroyd  v.  Smith,  355. 
Acton  V.  Blundell,  371. 
Adair  v.  Lott,  73,  75,  79. 
Adams  v.  Adams,  79,  84,  165,  272. 

V.  Beadle,  8. 

V.  Buchanan,  193. 

T.  Bucklin,  377. 

V.  Corriston,  184,  19&. 

V.  Cuddy,  223. 

V.  Freeman,  166. 

V.  Guerard,  296. 

KEAL  PROP. — 83 


Adams  V.  Hill,  83 

V.  Jenkins,  118. 

V.  Johnson,  191. 

V.  Knowlton,  339. 

V.  Lindell,  174. 

V.  Logan,  75,  79. 

V.  McKesson's  Ex'x,  154. 

V.  Medsker,  416. 

V.  Niemann,  181. 

V.  Parker,  210. 

V.  Rivers,  362. 

V.  Ross,  36,  297. 

V.  Savage,  299. 

V.  Sayre,  202. 

V.  Terre-Tenants   of    Savage,   299. 

V.  Walker,  371. 

V.  Winne,  475. 
Addison  v.  Hack,  167,  168,  358. 
Aderhold  v.  Supply  Co.,  153. 
Adlum  V.  Yard,  408. 
Advance  Coal  Co.  v.  Miller,  12. 
Aetna  Fire  Ins.  Co.  v.  Tyler,  198, 
Aetna  Life  Ins.  Co.  v.  Corn,  232. 
Agate  V.  Lowenbein,  65. 
Agawam  Canal  Co.  v.  Edwards,  422. 
Agricultural   Bank   of   Mississippi    v. 

Rice,  416. 
Ahern  v.  McCarthy,  187. 
Ahrend  v.  Odiorne,  192. 
Aiken  v.  Benedict,  4. 

V.  Railway  Co.,  232. 
Aikin  v.  Railway  Corp.,  3S0. 
Aiman  v.  Stout,  384. 
Ainsworth  v.  Ritt,  153. 
Alabama  &  G.   Manuf'g  Co.  v.   Eob- 

Inson,  182. 
Albany's  Case,  322. 
Albee  v.  Carpenter,  49. 

(497) 


498 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Albert  v.  Burbank,  435. 
Albright  v.  Albright,  434. 
Alderson  v.  Caskey,  189. 

V.  Miller,  453. 
Aldersou's  Heirs  v.  Henderson,  98. 
Aldine  Mauuf'g  Co.  v.  Barnard,  18. 
Aldrich  V,  Husband.  12. 
Aldridge  v.  Dunn,  193. 
Alexander  v.  Alexander,  82,  114,  319. 

V.  Cunningham,  86. 

V.  Ellison,  342. 

V.  Fisher,  63. 

V.  Jackson,  116. 

V.  Pendleton,  213. 

V.  Tarns,  267. 

V.  Thacker,  493. 

V.  U.  S.,  4. 

V.  Warrauee,  74,  77. 

V.  Welch,  204. 
Alford  V.  Vickery,  162. 
Algonquin  Coal  Co.  v.  Northern  Coal 

&  Iron  Co.,  460. 
Alkire  v.  Kahle,  339. 
Allan  V.  Gomuie,  360. 
Alleman  v.  Hawley,  342. 
Allen  V.  Allen,  54,  462,  464. 

V.  Bloomer,  57. 

V.  Biyan,  145. 

V.  Cadwell,  216. 

V.  Cook,  123. 

V.  De  Groodt,  289. 

V.  Elderkin,  196. 

V.  Everly,  184. 

V.  Hartnett,  109. 

V.  Hawley,  116. 

V.  Heber,  475. 

V.  Hooper,  71. 

V.  Hopper,  387. 

V.  Howe,  172. 

V.  Howley,  126. 

V.  Keily,  165. 

V.  Kennedy,  441,  449. 

V.  Lenoir,  438. 

V.  Loring,  193. 

V.  McCoy,  87. 

V.  Manasse,  114. 

V.  Markle,  48. 

V.  Pray,  109. 

V.  Sayward,  441. 

V.  Scott,  426. 

V.  Trustees,  49,  302. 

T.  Whitaker,  118. 


Alley  V.  Bay,  119. 
Allin  V.  Bunce,  48. 
All  is  V.  BUlings,  384. 

V.  Field,  467. 
Allore  V.  Jewell,  384. 
Allyn  V.  Mather,  327. 
Alston  V.  Grant,  142. 
Alt  V.  Banholzer,  207. 

V.  Stoker,  437. 
Altemus  v.  Campbell,  459. 
Altes  V.  Hinckler,  493. 
Althof  V.  Conheim,  339. 
Alwood  V.  Ruckman,  154,  155. 
Ambler  v.  Woodbridge,  175. 
Ambs  V.  Hill,  19. 

V.  Railway  Co.,  417. 
Amcotts  V.  Catherlch,  84. 
American  Bank-Note  Co.  v.  New  York 

El.  R.  Co.,  364. 
American   Button-Hole,   Overseaming 
&   Sewing-Mach.   Co.   v.   Burlington 
Mut.  Loan  Ass'n,  201,  237. 
American  Emigrant  Co.  v.  Clark,  416. 
American  Mortg.  Co.  v.  Hill,  59. 

V.  Hopper,  403. 
American  River  Water  Co.   t.   Ams- 

den,  6. 
Ames,  Ex  parte,  12. 

V,  Cadogan,  317. 

V.  Norman,  338,  343. 

V.  Richardson,  198. 
Amesbury  v.  Brown,  50. 
Amick  V.  Brubaker,  159. 
Amidon  v.  Harris,  355,  373. 
Ammidown  v.  Ball,  426. 
Amory  v.  Meredith,  316. 
Amoskeag   Mauuf'g   Co.    v.    Goodale, 

356. 
Amphlett   v.   Hibbard,    116,    120,    123, 

247. 
Amsden  v.  Atwood,  160. 
Anderson  v.  Anderson,  145. 

V.  Bank,  210. 

V.  Baughman,  42L 

V.  Caiy,  395. 

V.  Coburn,  451. 

T.  Dugas,  223. 

V.  Jackson,  326. 

V.  Parsons,  477, 

V.  Prindle,  158. 

V.  Roberts,  393. 

V.  Smith,   180. 


CASES  CITED. 


499 


[The  figures  refer  to  pages.] 


Ajiderson  v.  Spencer,  194. 
Anding  v.  Davis,  238. 
Andrae  v.  Haseltine,  367. 
Andrew  v.  Pearce,  451. 
Andrews  v.  Andrews,  108,  275. 

V.  Bassett,  110. 

V.  Button  Co.,  19. 

V.  Emmot,  316. 

V.  Hailes,  144. 

V.  Lyons,  453. 

V.  President,  etc.,  262. 

V.  Senter,  175. 
Andries  v.  Railway  Co.,  353. 
Angell  V.  Rosenbury,  261,  262, 
Angus  V.  Dalton,  353. 
Anheuser-Busch     Brewing    Ass'n     v. 

Peterson,  142. 
Annable  v.  Patch,  301. 
Ann  Arbor  Sav.  Bank  v.  Webb,  231. 
Anon.,  5,  20,  45,  50,  65,  137,  252,  253, 
260,  266,  315,  366,  368,  374,  375,  395. 
Anon.  V.  Cooper,  146. 
Anthony  v.  Anthony,  288. 

V.  Railway  Co.,  142. 

V.  Rice,  120,  124. 
Antoni  v.  Belknap,  22. 
Apple  V.  Apple,  84,  91. 
Appleton  V.  Boyd,  336. 
Appling  V.  Odom,  154. 
Arcedeckne  v.  Kelk,  363. 
Archer  v.  Bennett,  426. 
Archer's  Case,  294,  297,  303. 
Ards  V.  Watkin,  148. 
Arkwright  v.  Gell,  372. 
Arlin  t.  Brown,  192. 
Arment  v.  Hensel,  66. 
Armour  Pack.  Co.  v.  Wolffs  196. 
Arms  V.  Burt,  36. 
Armstrong  v.  Abbott,  213,  215. 

V.  Bicknell,  155. 

V.  Dubois,  426. 

V.  Michener,  38. 

V.  Moore,  321. 

V.  Mudd,  421. 

V.  Wheeler,  149. 

V.  Wilson,  80. 

V.  Wolsey,  266. 
Arnold  v.  Arnold,  343. 

V.  Brown,  48. 

V.  Elmore,  422,  423. 

T.  Green,  203. 

T.  Holbrook,  363. 


Arnold  v.  Iron  Works,  38i. 

V.  Mundy,  5. 

V.  Patrick,  435. 

V.  Ruggles,  25. 

V.  Townsend,  384. 

V.  Wainwright,  340. 
Arnold's  Heirs  v.  Arnold's  Adm'r.  92. 
Arnsby  t.  Woodward,  151. 
Arp  V.  Jacobs,  114. 
Argues  v.  Waason,  185. 
Asbury  v.  Fair,  469. 
Ashcroft  V.  Railroad  Co.,  351,  417.  41S. 
Ashhurst  v.  Phonograph  Co.,  15'J. 
Ashhurst's  Appeal,  41. 
Ashley  v.  Ashley,  287,  326. 

T.  Warner,  178. 
Ashton's  Case,  108. 
Ashville  Division  No.  15  v.  Aston,  417. 
Astbury,  Ex  parte,  13,  21. 
Asten  V.  Asten,  473. 
Astley  V.  Micklethwait,  293,  294. 
Astor  V.  Miller,  148. 
Astry  V.  Ballard,  64. 
Atherton  v.  Pye,  287. 
Atkins  V.  Bordman,  351,  353. 

V.  Hinman,  494. 

V.  Kron,  60. 

V.  Sawyer,  209. 

V.  Sleeper,  134. 
Atkinson  v.  Atkinson,  114,  115. 

V.  Baker,  68. 

V.  Improvement  Co.,  493. 

V.  Miller,  191. 

v.  Walton,  182. 
Atlantic  Dock  Co.  v.  Leavitt,  432. 
AttersoU  v.  Stevens,  (Hi,  145. 
Attorney  General  v.  Chambers,  5,  471. 

V.  Gill,  329. 

V.  INIarlborough,  49. 

V.  Merrimack  Manuf'g  Co.,  170. 

T.  Old  South  Soc,  275. 

V.  Rector,  etc.,  276,  277. 

V.  Wallace's  Devisees.  275. 

V.  Williams,  356. 
Attwater  v.  Attwater,  395. 
Atwater  v.  Bodlish,  360. 
Atwood  V.  Atwood.  84,  101. 

V.  Dolan,  72. 

V.  Pulp  Co..  195. 

V.  Vincent,  192. 
Auer  V.  Penn,  409. 
Aughinbaugh  v.  Coppenheffer,  140. 


500 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Aultman  &  Co.  v.  Salinas,  123. 
Aultnian    &    Taylor    Manufg    Co.  v. 

Kicharcl.son,  417. 
Aurora  Fire  Ins.  Co.  v.  Eddy,  198. 
Austen  v.  Taylor,  258. 
Austin  V.  Austin,  181. 

V.  Cambridgeport  Parish,  176. 

V.  Pulschen,  214. 

V.  Railroad  Co.,  65,  142,  365. 

V.  Stanley,  121. 

V.  Stevens,  61. 

V.  Underwood,  126. 
Auworth  V.  Johnson,  139. 
Avelyn  v.  Ward,  302. 
Averill  v.  Taylor,  132,  234. 
Averitt  v.  Elliot,  250. 
Avern  v.  Lloyd,  324. 
Avery  v.  Clark,  193. 

V.  Dougherty,  139. 

V.  Payne,  344. 
Aitell  V.  Warden,  127. 
Ay  cock  V.  Railroad  Co.,  142. 
Ayer  v.  Spring,  97. 
Ayers  v.  Grill,  124. 

V.  Hawks,  122. 

V.  Staley,  2fX). 
Aymar  v.  Bill,  210. 
Ayres  v.  Draper,  1G2. 

V.  Railroad  Co.,  363. 
Ayton  V.  Ayton,  289. 


Babb  V.  Perley,  70-72. 
Babbitt  v.  Babbitt,  262. 

V.  Day,  92,  93. 
Babcock  v.  Collins,  416. 
Bachelder  v.  Wakefield,  353. 
Back  V.  Stacey,  363. 
Backenstoss  v.  Stabler,  8. 
Backus  V.  Burke,  249. 

V.  Sternberg,  158. 
Backus'  Adm'rs  v.  McCoy,  443. 
Bacon  v.  Bowdoin,  131. 

V.  Cottrell,  202. 

v.  Huntington,  170. 

V.  Lincoln,  443. 

V.  Smith,  304. 

V.  Van  Schoonhoven,  227. 
Baggett  V.  Meux,  396. 
Bagley  v.  Freeman,  149. 


Bagley  ▼  Kennedy,  458. 

V.  Morrill,  422. 
Bagnell  v.  Broderick,  402,  403. 
Bagott  V.  Orr,  5. 
Baile  v.  Coleman,  297. 
Bailey  v.  Carleton,  462. 

V.  Duncan,  71. 

V.  Gould,  210. 

V.  Metcalf,  230. 

V.  Seymour,  455. 

V.  Sisson,  345. 

V.  Stephens,  374. 
Bain  v.  Brand,  20. 
Bainbridge  v.  Sherlock,  370t 
Bakeman  v.  Talbot,  356. 
Baker  v.  Adams,  161. 

V.  Atherton,  14. 

V.  Baker,  191,  488. 

V.  Bliss,  214. 

V.  Bridge,  38. 

V.  Colhns,  246. 

V.  Colony,  1S5,  19L 

V.  Dening,  430. 

V.  Frick,  356. 

V.  Haskell,  434. 

V.  Heiskell,  78. 

V.  Hunt,  443. 

V.  Leibert,   93. 

V.  Mclntirff,  143. 

V.  Mather,  216. 

V.  Mott,  171. 

V.  Railway   Co.,  104. 

V.  Swan's  Lessee,  461. 

V.  Terrell,  207. 

V.  Thrasher,  190. 
Bakewell  v.  Ogden,  317. 
Baldwin  v.  Allison,  270. 

V.  Breed,  20. 

V.  Golde,  385. 

V.  Hatchett,  212. 

V.  Humphrey,  272. 

V.  Sager,  215. 

V.  Taylor,  167. 

V.  Tuttle,  393. 
Bales  V.  Periy,  315. 
Balfour  v.  Russell,  152. 
Ball  V.  Herbert,  370. 

V.  Nye,  371. 

V.  Setzer,   204. 
Ballard  v.  Carter,  272. 

V.  Dyson,  361. 

V.  Johnson,  146. 


CASES  CITED. 


501 


[The  figures  refer  to  pages.] 


Ballentine  v.  Poyner,  64. 
Ballou  V.  Wood,  342. 
Balston  v.  Bensted,  371. 
Bamberger  v.  Geiser,  227. 
Bancroft  v.  City  of  Cambridge,  31. 

V.  Curtis,  386. 
Bangor  House  Proprietary  v.  Brown, 

362. 
Bangs  V.  Smith,  316. 
Banicli  v.  Horner,  249. 
Banli  of  America  v.  Banlis,  453. 
Banlc  of  Healdsburg  v.  Bailhaclje,  433. 
Banli  of  Louisville  v,  Baumeister,  185. 
Bank  of  New   York  v.   Ballard's  As- 
signee, 287. 
Bank  of  Orleans  v.  Flagg,  217. 
Bank  of  Oroville  v.  Lawrence,  225. 
Bank  of  South  Carolina  v.  Rose,  236. 
Bank  of  State  v.  Forney,  395. 
Bank  of  Suisun  v.  Stark,  171. 
Bank    of    Ukiah    v.    Petaluma    Sav. 

Bank,  226. 
Bank  of  U.  S.  v.  Benning,  453. 

V.  Housman,  266. 
Bank  of  Utica  v.  Finch,  229. 
Bank  of  Versailles  v.  Guthrey,  113. 
Banks  v.  Ogden,  471. 
Banning  v.  Bradford,  248. 

V.  Edes,  226. 
Bannister  v.  Bannister,  110. 
Bannon  v.  Angier,  357. 
Barber  v.  Harris.  338. 

V.  Root,  71. 

V.  Stone,  152. 
Barclay  y.  Picker,  153. 
Bard  v.  Poole,  247. 
Bare  v.  Bare,  110. 
Barker  v.  Barker,  74,  77,  80. 

V.  Keete,  266. 

V.  Parker,  91. 
Barkley  v.  Wilcox,  371,  372. 
Barksdale  v.  Gamage,  54. 

V.  Garrett,  111. 
Barlow  v.  Dahm,  145. 

V.  McKinley,  446. 

V.  Salter,  327. 

V.  Wainwright,  156. 
Barnaby  v.  Baruaby,  382. 
Barnard  v.  Cushman,  234. 

V.  Godscall,  137. 
Barnes  v.  Barnes,  168. 


Barnes  v.  Burl,  418. 

V.  Cunningham,  83. 

V.  Dow,  396. 

V.  Gay,  125. 

V.  Lloyd,   357. 

V.  Lynch,  343. 

V.  Mott,  203. 

V.  Sabron,  370. 
Bamet  v.  Dougherty,  267. 
Barnett  v.  Barnett,  420. 

V.  Johnson,  3,  364. 

V.  Nelson.  201. 

Barnett's  Appeal,  255,  272. 
Barney  v.  Frowner,  97. 

V.  Griffin,  394. 

V.  Keith,  138. 

V.  Keokuk,  5,  423. 

V.  McCarty,  222. 
Barnhart  v.  Lockwood,  152. 
Barnitz's  Lessee  v.  Casey,  306. 
Barnstable  Sav.  Bank  v.  Barrett,  288. 
Barnum  v.  Barnum,  60. 

V.  Phenix,  211. 
Barr  v.  Galloway,  75. 

V.  Hatch,  318. 

V.  Schroeder,  408. 

V.  Vanalstine,  247. 
Barren  v.  Joy,  262. 
Barrett  v.  Hinckley,  183,  198. 

V.  Ice  Co.,  6. 

v.  Trainor,  148. 
Barrie  v.  Smith,  175. 
Barron  v.  Barron,  72, 
Barrows  v.  Barrows,  123. 
Barry  v.  Exchange  Co.,  263,  389. 

V.  Shelby,  58. 

V.  Smith,  154. 
Bartenbach,  In  re,  104. 
Bartholomew  v.  West,  116. 
Bartlet  v.  Harlow,  343. 

V.  King,  276. 
Bartlett  v.  Borden,  196. 

V.  Drake,  430. 

r.  Gouge,  89. 

V.  Wade,  210,  228. 

V.  Wood.  13. 
Barton  v.  Briscoe,  396. 

V.  Croxall,  476. 

V.  Drake,  123. 
Bascome  v.  Albertson,  277. 


602 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Bason  v.  Mining  Co.,  430. 
Bass  V.  Edwards,  359. 

V.  Estill,  219,  437. 

V.  Power  Co.,  167. 

V.  Wheless,  200. 
Bassett  v.  Bradley,  208. 

V.  Hawk,  432. 

V.  Mason,  242. 

V.  Messner,  118. 
Batchelor  v.  Whitaker,  36. 
Bateman  v.  Bluck.  363. 

V.  Hotchkin,  GG. 

V.  Maddox,  159. 

V.  Pool,  114. 
Bates  V.  Bates.  322. 

V.  Norcross,  446,  447,  455. 

V.  Ruddick,  237. 

V.  Schraeder,  80. 

V.  Shraeder,  304. 

V.  Swiger,  418,  452. 
Battel!  v.  Torrey,  383. 
Batterman  v.  Albright,  8. 
Battey  v.  Hopkins,  300. 
Baugan  v.  Mann,  363. 
Baum  V.  Gaffy,  181. 

V.  Grlssby,  193. 
Baumgartner  v.  Peterson,  228. 
Baxter  v.  Bradbury,  451. 

V.  Lansing,  151. 

V.  Smith,  385. 
liayer  v.  Cockrill,  256. 
Bayler  v.  Com.,  305,  416. 
IBayles  v.  Young,  213. 
IBayley  v.  Bailey,  206. 

V.  Greenleaf,  193. 
Baylis  v.  Tyssen-Amhurst,  374. 
Bayzer  t.  Mill  Co.,  6. 
Beach  v.    Haynes,  37. 

V.  Miller,  83,  446. 
Beadle  v.  Hunter,  467. 
Beal  V.  Car-Spring  Co.,  153. 

V.  Harrington,  193. 

V.  Warren,  393. 
Beall  V.  Davenport,  144. 

V.  Fox's  Ex'rs,  277. 
Beall's  Lessee  v.  Holmes,  57, 
Bealor  v.  Hahn,  81. 
Bean  v.  Boothby,  232. 

V.  Mayo,  445. 

V.  Stoneman,  441. 
Bear  v.  Snyder,  92. 

V.  Stahl,  103, 


Beard  v.  Nutthall,  108. 

V.  Wescott,  324. 
Beardslee  v.  Beardslee,  88. 
Beardsley  v.  Bank,  15. 

v!  Hilson,  434. 

V.  Knight,  346. 
Bear's  Case,  475. 
Beatle  v.  Butler,  217. 
Beatty  v.  Clark,  318. 

V.  Kurtz,  363. 

V.  Mason,  462. 
Beaty  v.  Bordwell,  342. 
Beavan  v.  Speed,  122. 

V.  Went,  388. 
Beaver  Brook  Reservoir  &  Cana!  Oo. 
V.  St.  Vrain  Reservoir  &  Fish  Oo., 
370. 
Becker  v.  Howard,  494. 
Becker's  Estate,  In  re,  23. 
Beckley  v.  Leffingwell,  287. 
Beckman  v.  Davidson,  465. 
Beckwith  v.  Rector,  etc.,  275. 
Beddoe  v.  Wadsworth,  456. 
Bedford  v.  Backhouse,  225. 

V.  M'Elherron,  150. 

V.  Terhune,  147. 
Bedgood  v.  McLain,  491. 
Beebe  v.  Estabrook,  481. 

V.  Swartwout,  448. 
Beecher  v.  Baldy,  122,  123. 
Beekman  v.  Railroad  Co.,  495. 
Beeman  v.  Beeman,  260. 

V.  Cowser,  72. 
Beers  v.  Beers,  65. 

V.  St.  John,  16. 

V.  Strong,  101. 
Beeson  v.  Burton,  55. 
Beeszard  v.  Capel,  146. 
Belden  v.  Carter,  434. 
Bell  V.  Bruhn,  162. 

V.  Denson,  459. 

V.  Ellis'  Heirs,  156. 

V.  Evans,  225. 

V.  Fleming's  Ex'rs,  223. 

V.  Mayor,  etc.,  60,  91,  201. 

V.  Railroad  Co.,  375,  376. 

V,  Scammon,  410. 

V.  Twilight,  57,  59. 

V.  Woodward,  232. 
Bellamy  v.  Thornton,  487. 
Bell  Oo.  V.  Alexander,  172. 
Bellinger  v.  White,  127. 


CASES  CITBD. 


503 


[The  figures  refer  to  pages.] 


Bellows  V.  Sackett,  142. 
Belser  v.  Youngblood,  146. 
Helton  V.  Summer,  480. 
Bemis  V.  Call,  232. 
Benedict  v.  Morse,  163,  16o. 
Beneseh  Y.  Clark,  310.  322. 
Benett  v.  Costar,  3»4- 
Benjamin  v.  Heeney,  13o. 
Benner  v.   Evans,  96. 
Bennet  v.  Bittle,  139,  141.  474. 
Bennett  v.  Bates,  207. 
T.  Bennett,  71. 
V.  Chapin,  395, 
V.  Ctiild,  338. 
V.  Conant,  243. 
V.  Cook,   203. 
V.  Harms,  103. 
V.  Hibbert,  388. 
V    Hunter.  491. 
V.  Keebn,  207. 
V.  Morris,  294. 
V.  Robinson,  156,  177.  1<8. 
V.  Shipley,  192. 
I.  Trustees  of  M.  E.  Church,  b< 
V.  Waller,  455. 
Bennock  v.  Whipple,  lb9. 
Benson  v.  Corbin,  326. 
Bent  V.  Coleman,  21b. 

V.  Weeks,  102. 

Bente  v.  Lange,  119. 

BenUey  v.  City  of  f  ^^J^^^'  ^^ 

Benton  Co.  v.  Czarlmsky    195^ 

Bent's  Adm'r  v.  St    Vram,  480. 

Berger  t.  Hoerner,  19,  23. 

Berkmeyer  v.  Kellerman,  2.0. 

Bemier  v.  Bernier,  404 

Bernstein  v.  Humes,  209. 

Berrien  v.  Conover,  111. 

Berry  v.  Berry,  294. 

V.  Dobson,   116. 

V.  Insurance  Co.,  220. 

V,  N  orris,  204. 

V.  Potter,  167. 

V.  Seawall,   452. 

V.  Snyder,  5. 

V.  Wiedman,  268. 

Bessell  v.  Landsberg,  161. 

Besson  v.  Gribble,  S4 

Bethlehem  v.  ^^S;/^^- 

Bethune  v.  McDonald,  107. 

Bevans  v.  Briscoe,  9,  143. 


,  Bewick  v.  Fletcher,  13. 

V.  Whitfield,  66. 
I  Bexar  Bldg.  &  Loan  Ass'n  ▼.   New- 
man, 248. 
I  Bibb  V.  Hunter.  263. 
Bickford  v.  Page,  443. 
Bickley  v.  Guest,  321. 
Biddel  v.  Brizzolara,  208. 
Bidwell  V.  Greeushield,  102.^ 
I  Biederman  v.   Seymour.  475. 
Big   Black  Creek   Imp.   Co.   v.   Ivem- 

merer.  140. 
Bigelow  V.  Hoover,  470. 

V.  Hubbard,   445. 
Biggerstaff  v.  Marston,  226. 
Biggs  V.  Brown,  9. 
Bigler  v.  Bank,  19. 
Bigley  v.  Jones,  215. 
Big  Mountain  Imp.  Co.'s  Appeal,  3o0. 
Bilderback  v.  Boyce,  316. 
I  Billings  V.  McDermott,  493. 
V.  Marsh,  390. 
V,  Taylor,  64,  88. 
Billows  V.  Sackett,  372. 
Bills  V.  Bills,  395. 
Bingham's  Appeal,  316 
I  Binney  v.  Proprietors  3b». 
'  Biroher  v.  Parker,  23,143. 
Bird  V.  Higgiusou,  41o. 
V.  Keller,  238. 
V.  Stark,  463. 
1  Birmingham  v.  Rogers,  loo. 
Bishop  v.  Blair,  71. 
V.  Boyle,  90. 
V.  Howard,  130. 
Bissell  V.  Grant,  355,  373. 

V.  Railroad  Co..  4 — 
Bissing  V.  Smith,  401. 
Black  V.  Curran,  Ho. 
V.  Lusk,   124. 
V.  Mining  Co.,  88. 
V.  Reno,   204.  210. 
V.  Singley,  114. 
V.  Zacharie,  2. 
,  Blackburn  v.  Traffic  Co.,  l-l- 
Blackman  v.  Hardware  Co     1-1. 
Blackmon  v.  Blackmon,  108. 
Blackmore  V.   Boardmau,  13o,   13b. 

V.  Gregg,  341.  4b3. 
Blackstone  Bank  V.  Davis,  40.  398. 

Blackwell  v.  Broughton,  113. 


504 


OASES   CITED. 


[The  figures  refer  lo  pages.] 


Blades  v.  Blades,  223. 
Blagge  V.  Miles,  31G. 
Blagrove  v.   Hancock,  323. 
Blain  v.  HaiTison,  95,  106. 
Blair,  Ex  parte,  209. 

V.  Carpenter,  240. 
Blaisdell  v.  Railroad  Co.,  IGG,  167. 
Blake  v.  Broughton,  230. 

V.  Bumbury,  272. 

V.  Dick,  139. 

V.  Hawkins,   316. 

V.  Ranous,  139. 
Blakeney  v.  Ferguson,  89. 
Blakeslee  v.  Sincepaugh,  4.52. 
Blauchard  v.  Blanchard,  290,  312. 

V.  Bowers,  12,  159, 

V.  Bridges,  364. 

V.  Brooks,  440. 

y.  Ellis,  451. 

V.  Moulton,  353. 

V.  Porter,  5. 

V.  Tyler,  428. 

V.  Ware,  218. 
Blanche  v.  Bradford,  146. 
Blaney  v.  Rice,  424. 
Blaney's  Estate,  In  re,  110. 
Blankenpickler    v.    Anderson's    Heirs, 

404. 
Blantin  v.  Whitaker,  144. 
Blass  V.  Terry,  241. 
Blasson  v.  Blasson,  290. 
Blatchford  v.  Newberi-y,  284. 
Blatchley  v.  Osborn.  214. 
Blauvelt,   In  re,  24. 
Blazy  V.  McLean,  189. 
Bleecker  v.  Hennion,  94. 

V.  Smith,    151,   175. 
Bless  V.   Jenkins,    149. 
Blevins  v.  Smith.  494. 
Bllgh  V.  Brent,  25. 
Blight  V.  Schenck,  435,  436. 
Blim  V.  Wilson,  230. 
Blinston  v.  Warburton,  38. 
Bliss  V.  .Johnson,  466. 

T.  Misner,  14. 
Block  V.  Latham,  146. 
Blodget  V.  Brent,  84,  95. 
Blodgett  V.  Hildreth,  266. 

V.  Stone,  369. 
Blodwell  V.  Edwards,  292. 
Blomfield  v.  Eyre,  319. 
Blood  V.  Blood,  84,  219,  437. 


Bloodgood  V.  Ayres,  37L 

Bloom  V.  Welsh,  7. 

Bloomfleld  &  R.  N.  Gaslight  Co.  t. 
Calkins,  362. 

Blough  V.  Parry,  384 

Blove  V.  Sutton,  318. 

Blue  V.  Blue,  116. 

Blum  V.  Light,  125. 
V.  Mitchell,  202. 

Blumberg  v.  Birch,  241. 

Blundell  v.  Catterall,  5. 

Blunden  v.  Baugh,  458. 

Blyth  V.  Dennett,  162. 

Board  v.  Board,  458. 
V.  Wilson,  194. 

Board  of  Com'rs  of  Mahoning  Co.  v. 
Young,  172. 

Board  of  Education  of  Normal  School 
Dist.  V.  Trustees  of  First  Baptist 
Church  of  Normal,  176. 

Board  of  Education  of  State  of  Illi- 
nois V.  Bakewell,  275. 

Board  of  Education  of  Village  of  Van 
Wert  V.  Inhabitants  of  Village  of 
Van  Wert,  178. 

Board  of  Sup'rs  of  Cass  Co.  t.  Cow- 
gill,  130. 

Boatman  v.  Lasley,  355. 

Boatwright  v.  Bookman,  374. 

Bobb  V.  Wolff,  60. 

Bodfish  V.  Bodfish,  353. 

Bodwell  V.  Webster,  189. 

BodweU  Granite  Co.  v.  Lane,  181. 

Bogan  V.  Mortgage  Co.,  404. 

Bogardus  v.  Trinity  Church,  389. 

Bogert  V.  Bliss,  230. 
V.  Bogert,  345. 
V.  Striker,  229. 

Boggs  V.  Mining  Co.,  453. 

Bogk  V.  Gassert,  190. 

Bogue  V.  Williams,  217. 

Bohm  V.  Bohm,  265. 

Bohon  V.  Bohon,  287. 

Boland  v.  St.  John's  Schools,  351. 

Boling  V.  Clark,  111. 

Bolles  V.  Duff,  248. 
V.  Munnerlyn,  319. 

Boiling  V.  Boiling,  109. 
V.  Carter,  218. 
V.  Mayor,  etc.,  of  Petersburg,  178, 

282. 
V.  Teel,  344. 


CASES  CITED. 


505 


[The  figures  refer  to  pages.l 


Bolmanv.Lohman  204. 
Bolton  V.  Ballard,  91. 

V.  Myers,  24. 
Boltz  V.  Stoltz.  95 

Bombaugh  v.  ^^^^;'  ^f^^^^er  Co.  v 
Bon  Air  Coal.  Land  &  Lumoer 

Parks,  461. 

Bond  V.  Coke,  17. 

Bone  V.  Tyrrell,  60 
Bonifautv.  Greenfied,314. 

Bonner.  Petitioner,  34o. 

V.  Peterson,  99,  1^0,  1^ 
Bonomi  v.  Backhouse  3G6. 
Boocock  V.  Phipard,  188. 

Boone  v.  Cbiles.  213,  2iO. 
Bjoe.rSeSiaUves,.Boone,10. 

Booraem  v.  Wells,  31.. 
Boorum  v.  Tucker,  110. 
BootH  V.  Goodwin   119. 
V.  Insurance  Co.,  ^^>o. 
V.  Meyer,  173. 
V.  Shepherd,  423. 
V.  Starr,  449. 
V    Terrell,  282. 
Boothby  V.  Vernon^  79. 
Boothe  V.  Fiest,  18.. 
Boothroyd  V.  Engles   416 

Boqut  V.  Coburn.  234   230. 
Board  V.  Cudmore,  3.8. 
Borders  v.  Hodges.  48k 
Bordman  v.  Osborn   145. 
Borie  V.  Crissman,  6U 
Borland  v.  Dean._400. 

V.  Marshall,  to. 
Borst  V.  Boyd,  238. 
V.  Corey,  241. 
V    Empie,  351. 
Bosley  V.  Wyatt,  475. 
Bostic  T.  Young.  -22. 
Boston  T.  Richardson,  42- 
Boston  &  L.  R.  Corp.  v.  Salem  & 

\'^''k%\   Corp.  V.  New  York  & 
Boston  &  P-  f^-  ^'^'^y- 

N.  E.  R.  Co.,  242. 
Bostwick  V.  Leach,  10. 

V.  Williams,  448. 
Bosworth  V.  Sturtevant,  420. 
Bot.sford  V.  Burr,  268. 
T.  Morehouse,  4^4. 


Botting  V.  Martin.  160. 
Bottomley  v.  Fairfax,  89. 
Bottomly  V.  Spencer,  108. 
Boughton  V.  Boughton,  328. 
■Rnnklin  V.  Miller,  396. 
lounTBrook  Mut.  Fire  Ins.  Ass'n  t. 

Nelson,  199. 
Bouscaren  v.  Brown,  149. 
Boutelle  v.  Bank,  38. 
Bowditch  V.  Andrew,  271.  il^ 
Bowen  v.  Bowen,  174, 
T.  Conner,  351. 
V    Guild,  466. 
V.  Julius,  228. 
V.  Prout,  402. 
V.  Ratcliff,  181,  224. 
Bowers  v.  Andrews,  493. 

V.  Johnson,  210. 
Bowlby  V.  Thunder,  262. 
Bowles  V.  Poore,  68. 
Bowles'  Case,  62. 
Bowling  V.  Cook,  220. 

V.  Crook.  152. 
Bowlsby  V.  Speer,  371.  3.2. 
Bowman  v.  Farmer,  424. 
V.  Faw.  193. 
V.  Sunnuchs,  472. 
Bowyer's  Appeal,  123^ 
Boxheimer  v.  Gunn._224. 
Boyd  V.  Belmont   44o 
V.  Cudderback.  1-4. 
V.  De  La  Montagme,  393. 

V  Hunter,  92. 
V.  Slayback,  433 

V  Woolwine,  3o2,  360. 
Boyer  V.  Williams  22 
Boyers  v.  Newbanks,_100. 
Boykin  V.  Ancrum,  0._. 
Boynton  v.  Pierce,  2oo. 

V  Rees,  213. 
Bozeman  v.  Bishop,  57. 

V  Browning,  3»^- 
Bracken  v.  Cooper,  341. 

V.  Jones,  463. 
V.  Miller,  213. 
Brackett  v.  Goddajd,  8,  9. 

V.  Leighton.  S.. 
Braden  v.  Cannon,  48. 
Bradford  v.  Griffin.  67. 
V.  Randall.  429. 
V.  State,  34. 
V.  Trust  Co.,  12L 


506 


CASES  CITED. 


P?he  flgiires  refer  to  pages.] 


Bradish  y.  Gibbs,  318. 
Bradley  v.  Bailey,  9. 

V.  Dike,  445. 

V.  Peixoto,  395. 

V.  Rice,  423. 

V.  Snyder,  236,  246. 
Bradley's  Estate,  In  re,  60. 
Bradnpr  v.  Faulkner,  8. 
Bradshaw  v.  Eyre,  375. 
Brady  v.  Nagle,  151. 
Bragg  V.  Lyon,  345. 
Brainard  v.  Cooper,  246,  247. 

V.  Hudson,  216. 
Bralnerd  v.  Brainerd,  187. 
Brakken  v.  Railroad  Co.,  362. 
Bramhall  v.  Ferris,  41. 
Bramlett  v.  Wettin,  489. 
Branch  v.  Makeig,  342. 
Brand  v.  Brand,  439. 

V.  Rhodes'  Adm'r,  60. 
Brandon  v.  Brown,  383. 

V.  Dawson,  106,  107. 
Brandt  v.  Brandt,  330. 

V.  Mickle,  72. 
Branham  v.  Maj'or,  408. 
Brannock  v.  Hamilton,  481. 
Branson  v.  Yancy,  94. 
Brant  v.  Iron  Co.,  310. 

V.  Vincent,  159,  160. 
Brantley  v.  Insurance  Co.,  432. 
Brastow  v.  Ice  Co.,  6. 
Bratt  V.  Bratt,  132. 
Brattle  Square  Church  v.  Grant,  327, 

329. 
Bratton  v.  Clawson,  14. 

^.  Massey,  256. 

f.  MitcheU,  71. 
Brawford  v.  Wolfe,  454. 
Braxton  v.  Coleman,  98. 
Bray  v.  Bree,  313. 
Bream  v.  Dickerson,  137. 
Breckenridge  v.  Ormsby,  384. 
Breeding  v.  Davis,  82,  83. 
Breese  v.  Bange,  220. 
Bremer  v.  Dock  Co.,  234. 
Brennan  v.  Wallace,  121. 

V.  Whitaker,  15,  21. 
Brent's  Case,   255.   298. 
Brettun  v.  Fox,  119. 
Brewer  v.  Oonnell,  105. 

V.  Hardy,  264,  41L 

T.  Marshall,  441. 


Brewer  v.  Staples,  207. 

V.  Wall,  121. 
Brewster  v.  Carnes,  226. 

V.  Hill,  150. 
Brickett  v.  Spofford,  46a 
Bridge  v.  Ward,  396. 
Bridges  v.  Linder,  190. 

V.  Pleasants,  275. 

V.  Purcell,  168. 
Bridgewater  v.  Bolton,  38. 
Briggs  V.  Briggs,  474. 

V.  Hannowald,  245. 

V.  Rice  189. 

V.  Thompson,  217. 
Brill  V.  Stiles,  403. 
Brimmer  v.  City  of  Boston,  448. 
Brinckerhoff  v.  Lansing,  213. 
Bringloe  v.  Goodson,  321. 
Brinkman  v.  Jones,  214,  216. 
Brinkmeyer  v.  Helbling,  225. 
Bristol  V.  Carroll  Co.,  471. 
Bristol  Hydraulic  Co.  v.  Boyer,  369. 
Bristow  V.  Boothby,  326. 
Brittain  v.  McKay,  8. 
Britton's  Appeal,  223. 
Broadbent  v.  Ramsbotham,  372. 
Broadway  Nat.  Bank  v.  Adams,  396. 
Broadwell  v.  MeiTitt,  455. 
Brock  V.  Kellock,  74. 
Brockway  v.  Wells,  191. 
Brodbee  v.  Mayor,  etc.,  of  London,  368. 
Brolasky  v.  Ferguson,  145. 
Bronson  v.  Coffin,  368,  446. 
Brook,  Ex  parte,  22. 
Brooke  v.  Pearson,  396. 
Brooke's  Appeal,  221. 
Brookiield  v.  Williams,  346. 
Brooks  V.  Brooks,  61. 

V.  Curtis,  367. 

V.  Everett,  92. 

V.  Galster,   9. 

V.  Hyde,  156. 

V.  McMeekiu,  105. 

V.  Rogers,  143,  152. 
Brookville  &  Metamora  Hydraulic  Oo. 

V.  Butler,  6. 
Broome  v.  Davis,  119,  125. 
Brough  V.  Higglns,  61. 
Broughton  v.  Langley,  253. 

V.  Randall.  85. 
Brown  r.  Adams,  96. 

V.  Bank,  200. 


CASKS  CITED. 


501 


[Tbe  figures 

Brown  v.  Bates.  336. 
V.  Bo  wen,  451. 
V.  Bragg,  134. 
V.  Bronson,  99- 

V  Brown,  269,  427,  467. 

V.  Budd,  193. 

V  Caldwell,  110,  3S-. 
V.  Chadbourne,  6,  3(0. 

V.  Cockerell,  462,  4bo,  470. 
V.  Coon,  124. 
T.  Cram,  183.  . 
V.  Dean,  187. 
T.  Dressier,  386. 
V.  Fulkerson,  305. 
V.  Gay,  465. 
V.  Hospital,  48. 
V.  Kayser,  161. 
V.  King.  464. 
V.  Kite,  141. 
V.  Lawrence,  285. 
V.  Lunt,  438. 
V.  McKay,  182^,  204. 
V.  Manter,  437. 
V.  Peck,  173. 
V.  Pbillips,  309. 
V.  Power  Co.,  19,  23. 
V.  Raindle,  335. 
V.  Ricbards,  87. 
V.  Robins,  305. 
V.  Rogers,  53. 
V.  Rose,  463. 
V.  Rouse,  452. 
V.  Simpson,  219. 
v.  stackhouse,  146. 
V.  Veazie,  491. 
V.  Weaver,  49. 
V.  Welcb,  215. 
V.  Williams,  90. 
V.  Young,  44S. 
Browne  v.  Bockover,  0.,  »- 

V    Potter,  105. 
Browning  v.  Harris,  115. 
Brown's  Ti-ust,  in  re,  319. 
Brownsword  v.  Edwards,  SOL 
Bruce  v.  Bruce,  316. 
V.    Nicbolson,  80. 

Brudnel's  Case,  57. 
Brummellv.Macpberson.l.o. 

Brundage  v.  Association   196. 

Brunker  v.  Cummins    14 

Brunson  v.  Henry,  260,  482. 

Brush  V.  Brush,  476. 

V.  Ware,  403. 


refer  to  pages.] 

Bryan  v.  Bradley,  406 

V.  Knickerbocker,   3J7. 

V.  Wash,  435. 
Bryant  v.  Erskine,  181. 
Brydges  v.  Duchess  of  Chandos.  4.6. 

iBSch'a^'v.  Sumner.  339,340 
BuchanaJi   v.   Buchanan.    lOJ. 
V.  Curtis,  362. 
V.  Hamilton,  263. 
V    Monroe,  206. 
i  Buchanan's  Lessee  v.  Sheffer.  <7. 
Buck  V.  Conlogue,  121. 
'        V,  Sanders,  212. 
V.  Squiers,  422. 
V.  Wroten,  72. 
iBuckeridgev.  Ingram    87 
'  Buckland  v.  Butterfield,  18. 
I  Buckler  v.  Hardy,  284. 
Buckley  v.  Duff,  394 

V.  Superior  Court,  6io. 
Buckner  v.   Street.  448. 
Buckworth  V.  Thirkell,  46,  73,   .0,  7.. 

300.  ,^^ 

iBudd  V.  Brooke.  419. 

Buffumv.  Hutchinson,  36. 
Buford  V.  McKee    260^ 
Bugbee.  Appeal  of,  214.  216. 
BuUdlng  &  Loan  Ass'n  of  Dalvota 

LogaB.  126. 
IbuUv.  Bull   26L 

V.  Pritchard,  ^5-3. 

V  Shepard,  185. 
1  Bullard  V.  Briggs.  427. 

V  Harrison,  3o9. 
Bullock  V.  Grinstead,  134. 

V  Wilson,  5. 
iBulwerv.  Bulwer,  62. 

Bunce  V.  Wolcott,  469  _ 
Bunhamv.  Kidwell.  384. 
'Bunker  v.  Locke,  US- 

V.  paquette,  119- 
Bunn  V.  Ahl,  392. 

V.  Winthrop,  -<'^^- 
1  Burba nk  v.  Fay.  353. 

V    Roots.  20  (. 
iBurdv.  Dandsdale    80. 

I  Burden  v.  Thayer,  14!4. 


508 


CASES  CITEr 


[The  figures  refer  to  pages.] 


Burdeno  v.  Amperse.  387. 
Burdet  v.  Hopogood,  283. 
Burdick  v.  Jackson,  191- 
Burge  V.  Smith,  107,  416. 
Burgess  v.  Mawby,  50. 

V.  Muldoon,  81. 

V.  Wheate,   104,   2.'52. 
Burgher  v.  Henderson,  122. 
Burke  v.  Roper,  27G. 

V.  Valentme,  82. 
Burkhart  v.  Bucher,  49. 
Burleigh  v.  Clough,  307,  313,  310. 

V.  Coffin,  71. 
Bum  V.  Phelps,  141. 
Burnett  v.  Burnett,  54. 

V.  HoCfman,  245. 

V.  Pratt,  330. 

V.  Strong,  172. 
Burnham  v.  O'Grady,  153. 
Bums  V.  Beri-y.  224. 

V.  Bryant,   159. 

V.  Cooper,  155. 

V.  Lynde,  458. 

V.  Thayer,  250. 

V.  Thompson,   339. 
Burnslde  v.  Terry,  124. 

V.  Twitchell,  14,  15,  21. 
Burr  V.  Stenton,  441. 
Burrall  v.  Bender,  91. 
Burrell  v.  Burrell.  313. 
Burris  v.  Page,  53. 
Burrough  v.  Foster,  326. 
Burroughs  v.  Saterlee,  371. 
Burrows  v.  Gallup,  4G0. 

V.  Hovland,  191,  222. 
Burt  V.  Gamble,  182.  231.  240. 

V.  Herron's  Ex'rs,  262. 

V.  Hurlburt,  71. 

T.  Sheep  Co.,  IIL 

V.  Wilson,  206. 
Burton  v.  Barclay,  14S. 

V.  Baxter,  247. 

V.  Moffitt,  367. 

V.  Perry,  409. 
Bury  V.  Pope,  304. 
Buschman  v.  Wilson,  153. 
Busey  v.  Reese,  410. 
Bush  V.  Bradley,  75. 

V.  Cooper,  228. 

T,  Lathrop,  211. 

V.  Marshall,  451. 

V.  Person.  4.50. 

V.  Sherman,  249,  27a 


Bushby  v.  Dixon,  480. 
Bushey  v.  Santiff,  353,  360. 
Bush's  Appeal,  256,  261. 
Buss  V.  Dyer,  352. 
Butcher  v.  Butcher,  313. 
Butler  V.  Cheatham,  84,  88,  92. 

V.  Fitzgerald.  104,  489. 

V.  Huestis,  296. 

V.  Insurance  Co.,  268. 

V.  Roys,  343. 

V.  Thomburg,  85. 
Butler's  Estate,  In  re,  67. 
Butt  V.  Gas  Co.,  364. 
Buttenuth  v.  Bridge  Co.,  6,  472. 
Butterfleld  v.  Baker,  155. 

V.  Beall,  72. 

V.  Gilchrist,  370. 

V.  Okie,  193. 

V.  Reed,  357,  396. 

V.  Wicks,  114. 
Butterman  v.  Albright,  8. 
Butterworth  v.  Crawford.  352. 
Buttrick  v.  Ilolden,  214. 
Buxton  V.  Inhabitants  of  Uxbridffe,  48^ 

49. 
Buzlck  V.  Buzick,  84. 
Buzzell  V.  Gallagher,  344. 
Bybee  v.  Hageman.  420. 
Byers  v.  Byers,  200. 

V.  Engles.  210. 
Byington  v.  Fountain,  231. 
Byrne  v.  Lowry,  466. 


0 


Cabeen  v.  Mulligan,  121. 
Cadawallader  v.  Lovece.  434. 
CadeU  v.  Palmer.  133,  324. 
Cadwalader  v.  Tindall,  14a 
Cage  V.  Russel,  151. 
Cahlll  V.  Wilson,  118,  121. 
Cahn  V.  Hewsey,  18,  66. 
Cahoon  v.  Coe,  491. 
Caiger  v.  Fee,  353. 
Caillaret  v.   Bernard,  94. 
Cain  V.  Cain,  110. 
Caines  v.  Graxit's  Lessee,  269,  333. 
Cairns  v.  Colebum,  268. 
Cake's  Appeal,  226. 
Calborae  v.  Wright,  149. 
Calder  v.  Chapman,  222. 


CASES   CITED. 


60*J 


[The  figures  refer  to  pages.] 


Caldwell  v.  Carriagrton's  Heirs,  269. 
V.  Fulton,  374. 
V.  Jacob,  61. 
V.  Neely,  341. 
V.  Willis,  328. 
Calhoun  v.  Curtis,  341. 
Calkins  v.  Calkins,  238. 

V.  Munsel,  234. 
Callahan's  Estate,  In  re,  291. 
Callan  v.  McDaniel,  136. 
Callard  v.  Callard,  262. 
Callis  V.  Laugher,  363. 
Calumet  Iron  &  Steel  Co.  v,  Lathrop, 

21. 
Calumet  &  C.  C.  &  D.  Co.  v.  Russell, 

438. 
Calvert  v.  Aldrich,  342. 

V.  Rice,  64. 
Calvin's  Case,  103. 
Calvo  V.  Davies,  207,  208. 
Calwell  V.  Warner,  234. 
Cambreleng  v.  Graham,  230. 
Cambridge    Valley    Bank    v.  Delano, 

214.  216. 
Camden   &  A.    Land   Co.   v.   Lippen- 

cott,  470,  472. 
Cameron  v.  Railway  Co.,  340. 
Camley  v.  Staufield,  144, 
Camp  V.  Cleary,  177,  396. 

V.  Scott,  175. 

V.  Smith,  404. 
Campau  v.  Campau,  336. 

V.  Dubois,  4G4. 
.     V.  Michell,  IGO. 
Campbell  v.  Adair,  118,  121. 

V.  Ayers,  118. 

V.  Beaumont,  395. 

V.  Branch,  424. 

V.  Campl>ell,  90,  93. 

V.  Carson,  38. 

V.  Dearborn,  188. 

V.  Ellwanger,  234,  235. 

V.  Freeman,  224. 

V.  Hall,  455. 

Y.  Johnson,  420. 

V.  Knights,  487. 

V.  Kuhn,  384. 

V.  Leach,  319. 

V.  Lewis,  135,  148. 

V.  McClure,  445. 

V.  Mesier,  367. 

V.  Murphy,  111. 


Campbell  v.  Packard,  491 
V.  Potter,  121. 
V.  Prestons,  271. 
V.  Race,  363. 
V.  Sandys,  54. 
V.  Shipley,  464. 
V.  Whitson,  392,  393. 
Campbell's  Case,  87. 
Canby  t.  Porter,  80. 
Canedy  v.  Marcy,  420. 
Canfield  v.  Andrew,  369. 

V.  Ford,  3. 
Cannon  v.  Hare,  20,  102. 
V.  McDaniel,  194. 
v.  Villars,  360. 
Canny  v.  Andrews,  357. 
Capehart  v.  Foster,  17. 
Capek  V.  Kropik,  115. 
Capen  v.  Peckham,  10,  12. 
Carbrey  v.  Willis,  352. 
Cardross'  Settlement,  In  re,  314, 
Care  v.  Keller,  111. 
Carger  v.  Fee,  134,  352. 
Cargill  V.  Thompson,  136. 
Carley  v.  Gitchell,  168. 
Carll  V.  Butman,  89. 
Carlton  v.  Buckner,  194. 

V.  Jackson,  230. 
Carmichael  v.  Carmichael,  111. 
Carneal  v.  Banks,  388. 
Carnegie  Nat.  Gas.  Co.  v.  Philadelphia 

Co.,  151. 
Carney  v.  Mosher,  9,  143. 
Caroon  v.  Cooper,  90. 
Carpenter  v.  Carpenter,  184. 

V.  Davis,  82. 

V.  Dexter,  438. 

V.  Insurance  Co.,  197,   198^ 

V.  Jones,  9,  157. 

V.  Koons,  206. 

V.  Marnell,  264. 

V.  Mitchell,  194. 

V.  Walker,  13. 

v.  Westcott,  175. 
Carper  v.  Crowl,  110. 

V.  Munger,  209. 
Carr  v.  Carr,  64,  188. 

V.  Givens,  75.  79. 

V.  Hobbs,  192. 

V.  Lambert,  373. 

V.  Rising,  121. 

V.  Wallace,  376. 


510 


CASES   CITED. 


[The  flgureH  refer  to  pages.] 


Carraher  v.  Bell,  152. 
Carrel  v.  Head,  141. 
Carrier  v.  Paper  Co.,  207. 
Carriger's  Estate,  lu  re,  116. 
Carrol  v.  City  of  East  St.  Louis,  389. 
Carroll  v.  Ballauce,  152,  183. 

V.  Newtou,  17. 

V.  Kenich,  259. 

V.  Safford,  127. 
Carruthers  v.  Caruthers,  107,  108. 
Carson  v.  Blazer,  5. 

V.  Carson,  313. 

V.  Cochran,  240,  453. 

V.  Fuhs,  78,  296. 

V.  Murray,  100. 

V.  Thompson,  439. 
Carter  v.  Burr,  140. 

V.  Chauipiou,  219. 

V.  Conner,  339. 

V.  Corley,  439. 

V.  Dale,  78. 

V.  Goodin,  107. 

V.  Insurance  Co.,  198. 

V.  McDaniel,  92,  185. 

V.  McMichael,  53. 

V,  Thompson,  403. 

V.  Warne,  149. 

V.  Williams,  70. 

V.  Wingard,  107. 
CartAvright  v.  Wise,  268. 
Caruthers  v.  Humphrey,  184,  228. 

V.  Williams,    155. 
Carver  v.  Smith,  .338. 
Carwardine  v.  Carwardine,  300. 
Cary  v.  Warner,  67. 

V.  White,  224. 
Casborue  v.  Scarfe,  78. 
Case  V.  Owen,  335. 

V.  Peters.  189. 

V.  Phelps,  394. 

V.  Weber,  374. 
Case  Manuf'g  Co.  v.  Garven,  15. 
Case  of  Loringe's  Bx'rs,  378. 
Case  of  Mines,  7,  39. 
Cass  V.  Martin,  91. 

V.  Thompson,  106. 
Casselman  v.  Packard,  122. 
Cassilly  v    Rhodes,  10. 
Casterton  v.  Sutherland,  313. 
Castle  V.  Palmer,  123. 
Castlemain  v.  Craven,  66. 


Caswell  V.  Districh,  154,  155. 
Cates  V.  Wadlington,  G. 
Cathcart  v.  Bowman,  445. 
Catlm  V.  Ware,  97,  416. 
CattUn  V.  Brown,  324,  325. 
Caufman  v.  Sayre,  248. 
C.  Aultman  &  Co.  v.  Salinas,  123. 
Cave  V.  Cave,  18,  20. 

V.  Holford,  476. 
Cedar  Rapids  &  St.  P.  R.  Co.  v.  Stew- 
art, 431. 
Central  Bank  v.  Copeland,  80,  438. 
Central  Branch  R.  Co.  v.  Fritz,  23. 
Central  Bridge  Corp.  v.  Lowell,  495. 
Central    Trust    Co.    of    New    York   v. 
Bridges,  191. 

V.  Kneeland,  185. 
Central  Trust  &   Safe  Deposit  Co.  v. 

Cincinnati  Grand  Hotel  Co.,  21. 
Cerf  V.  Ashley,  245. 
Chadock  v.  Cowley,  326. 
Chadwick  v.  TroAver.  365. 
Chaffe  v.  Mcintosh,  339. 
Chalfant  v.  Grant,  117. 
Chalker  v.  Dickinson,  5. 
Challefoux  v.  Ducharme,  340. 
Chamberlain  v.  Bell,  221. 

V.  Hutchinson,  317. 

V.  Lyell,  123. 

V.  Meeder,  228. 

V.  Thompson,  183. 
Chamberlayne  v.  Brockett,  329. 
Chamberlin  v.  Donahue,  160. 
Chambers  v.  Chambers,  289. 

V.  Ross,  145. 

V.  St.  Louis,  275,  277. 
Champlin  v.  Pendleton,  422. 
Chancey  v.  Strong,  71. 
Chandler  v.  Cheney,  338. 

V.  Oldham,  143. 

V.  Simmonds,  383. 

V.  Von  Roeder,  392. 
Chapin  v.  Brown,  359,  363. 

V.  Chapin,  78. 

V.  Harris,  170,  177. 

V.  Hill.  109. 

V.  Shafer.  382. 
Chaplin  v.  Chaplin,  50,  78,  Sa 

V.  Leroux,  475. 

V.  Sawyer,  120. 

V.  Simmon's  Heirs,  94. 

V.  U.  S..  GO. 


CASBS  CITED. 


611 


[The  flfi^ures  refer  to  pages.] 


Chapman  v.  Chapman,  104, 
V.  Holmes'  Ex'rs,  444. 
V.  Pingree,  170. 
T.  Porter,  200. 
V.  Price,  78. 
V.  Scbroeder,  87,  111. 
Charles  v.  Andrews,  108. 
Charles  River  Bridge  v.  Warren  Bridge, 

421. 
Charless  v.  Froebel,  149. 
Chase  v.  Abbott,  246. 
V.  Bank,  233. 
V.  Box  Co.,  13. 
V.  Hazelton,  63,  64,  304. 
V.  McDonnell,  154. 
V.  McLellan,  243. 
V.  Peck,  233. 
V.  Van  Meter,  105.  232. 
V.  Woodbury,  236. 
Chasemore  v.  Richards,  371. 
Chase's  Case,  87,  99. 
Chatfield  v.  Wilson.  371. 
Chauncey  v.  Arnold,  428. 
Chauvin  v.  Wagner,  454,  455. 
Cheatham  v.  Jones,  110. 
Cheeseborough  v.  Green,  366. 
Cheever  v.  Pearson,  159. 
Chenango  Bridge  Co.  v.  Paige,  880. 
Chenery  v.  Stevens,  410,  411. 
Cheney  v.  Straube,  447. 

V.  Teese,  290. 
Cherokee  Nation  v.  Georgia,  400. 
Cherrrngton  v.  Abney  Mil,  364. 
Cherry  v.  Arthur,  15. 

V.  Greene,  310. 
Chesley  v.  King.  371. 
Chester  v.  Breitliug,  437. 

V.  Greer,  213. 
Chew  V.  Chew,  80. 

V.  Commissioners,  75,  78,  79. 
V.  Farmers'  Bank,  111. 
V.  Hyman,  234. 
V.  Morton,  453. 
Chicago  City  Ry.  Co.  v.  People,  379. 
Chicago  Dock  Co.  v.  Kinzie,  100. 
Chicago  Dock  &  Canal  Co.  v.  Kinzie, 

472. 
Chicago,  D.  &  V.  R.  Co.  v.  Fosdick, 

248. 
Chicago,  T.  &  M.  C.  Ry.  Co.  v.  Titter- 

ington,  124. 
Chicago  &  A.  R.  Co.  v.  Keegan,  144. 


Chicago  &  C.  RoUing-Mill  Co,  v.  Scul- 
ly, 233. 
Chicago  &  G.  W.  Railroad  Land  Co.  v. 

Peck,  245. 
Chicago  &  N.  W.  Ry.  v.  Ft  Howard. 

15. 
Chicago  &  S.  E.  Ry.  Co.  v.  Perkins. 

160. 
Chichester  v.  Bicherstaff,  23. 
Chick  V.  Willetts,  184. 
Chickering  v.  Failes,  461. 
Chidley    v.    Churchwardens    of    West 

Ham,  16. 
Child  V.  Baylie,  49,  327. 

V.  Stair,  422. 
Childers  v.  Bumgamer,  75. 

V.  Lee,  156. 
Childress  v.  Cutter,  485. 
Childs  v.  Childs.  235. 

V.  Clark,  148,  149. 

V.  Railway  Co.,  64,  342. 

V.  Smith,  101. 
Chilton  V.  Corporation  of  London,  874. 
Chirac  v.  Chirac,  388. 
Chisholm  v.  Caines,  6. 

V.  Georgia,  31. 
Chiswell  v.  Mon-is,  100. 
Chittenden  v.  Gossage.  181. 
Chittock  V.  Chittock,  107. 
Chloupek  V.  Perotka,  454,  463. 
Choate  v.  Burnham,  418. 
Choteau  v.  Jones,  213. 
Chouteau  v.  Railway  Co.,  105. 
Chouteau's  Ex'r  v.  Burlando,  240. 
Christian  v.  Dripps.  15. 
Christie  v.  Gage,  464. 
Christner  v.  Brown.  229. 
Christopher  v.  Austin,  141. 

V.  Christopher,  98. 
Christ's  Hospital  v.  Grainger,  829. 
Christy  v.  Dyer,  119,  126. 

V.  Pulliam,  315. 
Chudleigh's  Case,  252,  255,  298,  303. 
Chm'ch  V.  Brown,  140. 
V.  Bull,  109. 
V.  Church,  106. 
V.  Gilman.  435. 
Churchill  v.  Hudson,  80. 

V.  Hulbtrt,  168. 
Cibel  V.  HiU's  Case,  141. 
Cincinnati,  W.  &  Z.  R.  Co.  v.  Iliff,  436. 
Cissna  v.  Haines,  229. 


512 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Citizens'  Bank  v.  Knapp,  15. 
Citizens'  Nat.  Banlv  v.  Dayton,  247. 
City  Council  of  Augusta  v.  Durum,  IGS. 
City  of  Alton  v.  Illinois  Transp.  Co., 

421. 
City  of  Chicago  v.  Garrity,  153. 
V.  McGinn,  6. 
V.  Witt,  214. 
City  of  Denver  v.  Soloman,  142. 
City  of  Ft.  Scott  v.  Schulenberg,  240. 
Citj'  of  London  v.  Greyme,  65. 
City  of  Peoria  v.  Simpson,  142. 
City   of  Quincy  v.  Attorney   General, 

174. 
City  of  St.  Paul  v.  Chicago,  M.  &  St. 

P.  R.  Co.,  4G7. 
City  of  San  Antonio  v.  French,  158. 
City  of  Stockton  v.  Weber,  171. 
City  of  Victoria  v.  Schott,  471. 
City  Power  Co.  v.  Fergus  Falls  Water 

Co.,  141. 
City  and  County  of  San  Francisco  v. 
Fulde,  467. 
V.  Lawton,  412. 
Claflin  V.  Claflin,  396. 
V.  Railroad  Co.,  352. 
V.  Van  Wagoner,  314. 
Clapp  V.  Bromagham,  340,  341. 

V.  Ingraham,  320. 
Clapper  v.  Kells,  135. 
Claik  V.  Allen,  428. 

V.  Baker,  35,  48,  451. 
V.  Banks,  9. 
V.  Bayley,  123. 
V.  Clark,  78,  88. 
V.  Cogge,  3G0. 
V.  Condit,  189.    ■ 
V.  Fisher,  445. 
V.  Greenfield,  152. 
V.  Gregory,  246. 
V.  Harvey,  9. 
V.  Henry,  180. 
V.  Holland,  216. 
V.  Jacobs,  194. 
V.  Jones,  211. 
V.  Owens,  57,  58. 
V.  Powers,  420. 
V.  Rainey,  341. 
V.  Smith,  202. 
V.  S-wift,  445. 
V.  Tainter,  315. 
V.  Wheelock,  158. 
V.  White,  379. 


Clarke  v.  McClure,  460,  464. 
V.  Saxton,  204. 
V.  White,  223. 
V.  Wright,  394. 
Clarke's  Lessee  v.  Courtney,  482. 
Clarkson  v.  Clarkson,  53. 
Clary  v.  Owen,  21. 
Clavering  v.  Clavering,  64. 
Clawson  v.  Primrose,  364. 
Clay  V.  White,  76. 
Claycomb  v.  Hunger,  447. 
Clayton  v.  Blakey,  132. 
V.  Clayton,  38. 
V.  Earl  of  Wilton,  394- 
Clearwater  v.  Rose,  36. 
Cleaver  v.  Burcky,  207. 
Clemence  v.  Steere,  20,  63,  64. 
Clements  v.  Landrum,  427. 
Cleminger  v.  Gas  Co.,  152. 
Clepper  v.  Livergood,  78. 
Clerk  v.  Smith,  475. 
Cleveland  v.  Martin,  229. 
Cleveland  Ins.  Co.  v.  Reed,  240. 
Clever's  Estate,  In   re,  7. 
CUfford  V.  Clifford,  318. 

V.  Gresinger,  134. 
Cliffton  V.  Anderson,  73. 
Clifton  V.  Montague,  135. 
Climie  v.  Wood,  21. 
Clinton  Nat.  Bank  v.  Manwarring,  209, 
Clopton  V.  Bolton,  442. 
Clough  V.  Hosford,  156. 
Clowes  V.  Dickenson,  237. 
Clun  v.  Fisher,  00. 
Clute  V.  Fisher,  423. 
Coakley  v.  Cliamberlain,  132. 

V.  Perry,  105. 
Coates  V.  Cheever,  64,  85,  88. 
Cobb  V.  Davenport,  5. 
V.  Lavalle,  145. 
V.  Lucas,  417. 
V.  Trammell,    269. 
Cobbs  V.  Coleman,  113. 
Cobel  V.  Cobel,  155. 
Coburn,  Ex  parte,  166,  350. 
V.  Herrington,  93,  99,  107. 
V.  Stephens,  231. 
Cocheco  Manuf 'g  v.  Whittier,  421, 
Cochran  v.  Cochran,  60. 
V.  Harrow,  452. 
V.  O'Hem,  78. 
V.  Pew,  151. 
Cochrane  v.  Tuttle,  163. 


CASES  CITED. 


513 


[The  figures  refer  to  pages.] 


Cocke's  Ex'r  v.  Philips,  91. 
Ooclireil  V.  Curtis,  114. 
Oockrlll  V.  Armstrong,  92,  93. 

V.  Dowoey,  8. 
Coclison  V.  Cocli,  136. 
Codman  v.  Evaus,  3U2, 

V.  Winslow,  25. 
Cody  V.  Quarterman,  160. 
Coe  V.  Hobby,  409. 

V.  Manufacturing  Co.,  80. 

V.  Itailway  Co.,  15. 
Coffin  V.  Loring.  181. 

V.  Parker,  236. 
Coffman  v.  Coftman,  473. 
Cofran  v.  Shepard,  164. 
Cogel  V.  Raph,  493. 
Coggeshall    v.    Home    for    Friendless 

Children,  389. 
Cogswell  V.  Cogswell,  60. 

V.  Tibbetts,  103. 
Cohen  v.  Kyler,  20. 
Coker  v.  Whitlock,  195. 
Colburn  v.  Morrill,  141. 
Colby  V.  Duncan,  291. 

V.  Osgood,  450. 

V.  Poor,  243. 
Colchester  v.  Roberts,  353. 
Colclough  V.  Carpelfs,  133. 
Cole  V.  Bolard,  188. 

V.  Bradbury,  372. 

V.  Cole,  208. 

V.  Gill,  119. 

V.  Hughes,  367,  441. 

V.  Kimball,  445. 

V.  Lake  Co.,  36. 

V.  Raymond,  447. 

V.  Sewell,  299. 
Coleman,  In  re,  397. 

V.  Beach,  312. 

V.  Coleman,  344,  347. 

V.  Lyman,  443. 

V.  Pickett,  464. 

V.  Satterfield,  72. 

V.  Van  Rensstlaer,  181. 
Coles  V.  Coles,  91,  95. 
Cole's  Case,  138. 
CoUamer  v.  Langdon,  212. 
Collamore  v.  Collamore,  53. 
Collett  V.  Collett,  173. 
Collier  V.  Jenks,  17. 

V.  Pierce,  352. 

EEAL  PROP. — 88 


Collins  V.  Canty,  162. 

V.  CarHsle's  Heirs,  26L 

V.  Carman,  109. 

V.  Corson,  267. 

V.  Ewing,  380. 

V.  Hasbrouck,  148. 

V.  Hopkins,  315. 

V.  Riley,  175. 

V.  Warren,  94. 
Collomb  V.  Caldwell,  394. 
Colston  V.  McVay,  145. 
Colton  V.  Colton,  262. 
Colton  V.  Smith,  346. 
Columbia   Ins.    Co.   of    Alexandria   r. 

Lawrence,  198. 
Colvllle  V.  Parker,  392. 
Col  well  V.  Carper,  116. 
Coman  v.  Thompson,  8. 
Combs  V.  Jackson,  31. 
Comer  v.  Chamberlain,  74,  82. 
Commercial    Bank     v.     Cunningham, 
181. 

V.  Hiller,  236. 

V.  Weinberg,  182. 
Commissioners  of  Burke  Co.  v.  Cata- 

waba  Lumber  Co.,  370. 
Commissioners     of     Canal     Fund     v. 

Kempshall,  5. 
Commissioners    of    Charitable    Dona- 
tions &  Bequests  v.  De  Clifford,  329. 
Commissiouei's   of   Homochitto    River 

V.  Withers,  6. 
Commissioners  of  Knox  Co.  v.  Nichols, 

319. 
Commissioners   of  Sewers  v.   Glasse, 

374. 
Commissioners    of    Sinking    Fund    v. 

Walker,  263. 
Commonwealth  v.  Canal  Co.,  495. 

V.  Chapin,  5. 

V.  Dudley,  434. 

V.  Duttield,  320. 

V.  Inhabitants  of  Newbury,  862. 

V.  Lay,  125. 

V.  Low.  362. 

V.  Rigney,  166. 

V.  Robinson,  247. 

V.  Roxbury,  400,  402. 

V.  Tewksbury,  31,  39. 

V.  Williams'  Ex'rs,  312. 
Compton  V.  Richards,  363. 


614 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Oomstock  V.  Hitt,  207.  I 

V.  Michael,  202.  ! 

V.  Sharp,  357. 
V.  Smith,  454. 
Conant  v.  Little,  96. 
Concord  Manuf'g  Ck).  y.  Robertson,  5. 
Concord  Union  Mut.  Fire  Ins.  Co.  v. 

Woodbury,  lUD. 
Conduitt  V.  Ross,  3G7. 
Cone  V.  Insurance  Co.,  199. 
Coney  v.  Sanders,  311. 
Cougdon  V.  Morgan,  4G6. 
Conger  v.  Duryee,  152. 
Congham  v.  King,  137. 
Congregational  Society  of  Dubuque  v. 

Fleming,  12. 
Congregational  Society  of  Halifax  t. 

Starli,  37. 
Conklin  v.  Foster,  116. 
Oonlan  v.  Grace,  430,  433. 
Conn  V.  Conn,  341. 
Connah  v.  Hale,  146. 
Connaughton  v.  Sands,  113. 
Connecticut  Mut.  Life  Ins.  Co.  v.  Tal- 
bot, 227. 

V.  Tyler,  208. 
Connely  v.  Rue,  246. 
Conner  v.  Jones,  162. 

T.  Shepherd,  87. 
Connery  v.  Brooke,  358. 
Connolly  v.  Hammond,  250. 

V.  Keating,  265. 
Connor  v.  Bradley,  151. 
Conover  v.  Insurance  Co.,  198. 

V.  Wright,  IIL 
Conrad  v.  Mining  Co.,  16,  19. 
Conrady  v.  By  waters,  149. 
Consolidated  Coal  Co.  v.  Peers,  149. 
Consolidated  Land  &  Irrigation  Co.  v. 

Hawley,  155. 
Conway  v.  Carpenter,  152. 

V.  Starkweather,  159. 

V.  Taylor,  379. 
Cook  V.  Babcock,  463. 

V.  Brightly,  377,  378. 

V.  Brown,  434. 

V.  Cook,  101. 

V.  Fisk,  98. 

V.  Foster,  231. 

V.  Gammon,  353. 

V.  Hammond,  31,  280,  284,  306. 

V.  Jones,  149. 


Cook  V.  McClure,  470,  472. 

V.  Norton,  163. 

V.  Prindle,  185,  208. 

V.  Transportation  Co.,  16,  65,  143. 

V.  Webb,  94. 

V.  Whiting,  13. 
Cooke  V.  Bremond,  339. 

V.  Dealey,  266. 

V.  Husbands,  256. 
Cooksey  v.  Bryan,  265. 
Cooley  V.  Dewey,  480. 

V.  Golden,  5,  471. 
Coolidge  V.  Wells,  118. 
Cooper  V.  Adams,  158. 

v.  Basham,  121. 

V.  Cooper,  114,  338. 

V.  Cotton-Mills  Co.,  461,  467. 

V.  Franklin,  261. 

V.  Harvey,  21. 

V.  Jackson,  433. 

V.  Johnson,  16,  23. 

V.  Macdouald,  82,  396. 

V.  Merritt,  194. 

V.  Newland,  245. 

V.  Ord,  467. 

V.  Page,  428. 

V.  Smith,  380. 

V.  Whitney,  89. 

V.  Woolfitt,  8. 
Coor  V.  Smith,  196. 
Cope  V.  Cope,  205. 
Copeland  v.  Stephens,  149. 
Copp  V.  Swift,  12. 
Corbett  v.  Laurens,  61. 

V.  Woodward,  211. 
Corbin  v.  Healy,  42,  48. 
Corbit  V.  Smith,  383,  384. 
Corby  v.  Corby,  57. 
Cord  v.  Hirsch,  246. 
Cordova  v.  Hood,  216. 
Core  V.  Faupell,  466. 
Corlies'  Will,  In  re,  397. 
Cornelius  v.  Den,  174. 
Cornell  v.  Lamb,  31,  376. 
Corning  v.   Burton,  207. 
Cornish  v.  Gest,  345. 

V.  Strutton,  65. 
Corporation  of  Birmingham  v.  Allen, 

365. 
Corporation  of  London  v.  Riggs,  360. 
Corriell  v.  Ham,  109,  110. 
Corrlgan  v.  City  of  Chicago,  154. 


CASES  CITED. 


515 


[The  figures  refer  to  pages.] 


Oorrothers  v.  Jolliffe,  346. 
Cortelyou  v.  Vau  Brundt,  423. 
Oortleyeu  v.  Hathaway,  242. 
Oorwithe  v.  Gritliug,  345. 
Cory  V.  Schuster,  121. 
Cosner  v.  McCrum,  430. 
Costello  V.  Edson,  466. 
Gotlingliam  v.  Spi-inger,  209. 
Cottman  v.  Grace,  275. 
Cotton  V.  Burkelman,  317. 
Couch  V.  IngersoU,  441. 
Coudert  V.  Cohn,  159. 
Coulter  V.  Holland,  98. 
V.  Norton,  141. 
V.  Trust  Co.,  432. 
Countess  of  Shrewsbury's  Case,  63. 
Cotmtryman  v.  Lighthill,  4. 
County  of  St  Clair  v.  Lovingston,  470. 
Cover  V.  Black,  225. 
Covert  V.  Robinson,  49. 
Cowdrey  v.  Coit,  448. 
V.  Hitchcock,  114. 
Cowell  V.  Daggett,  435. 
V.  Hicks,  297. 
V.  Lumley,  139. 
V.  Springs  Co.,  40. 
Cowen  V.  Rinaldo,  254. 
Cowlam  V.  Slack,  374. 
Cowles  V.  Balzer,  368. 
V.  Marble,  235. 
V.  Ricketts,  409. 
Cowling  V.  Higginson,  361. 
Cowman  v.  Hall,  89. 
Cowx  V.  Foster,  316. 
Cox  V.  Arnold,  471. 
V.  Bent,  158. 
V.  Forrest,  353. 
V.  Freedley,  422. 
V.  Garst.  89,  91. 
V.  Glue,  375. 
V.  Jagger,  95. 
V.  Stafford,  113. 
V.  Walker,  273. 
V.  Wilder,  123. 
Ooxe  V.  State,  5. 
Coyle  V.  Wilkins.  241. 
Crabb  v.  Pratt,  84. 
Craddock  v.  Edwards,  114. 
Crafts  V.  Crafts,  85. 
Craig  V.  Butler,  153. 
V.  Cartwright,  465. 


Craig  V.  Dale,  8. 
V.  Leslie,  23,  24. 
V.  Miller,  246. 
V.  Railway  Co.,  362. 
V.  W^arner,  294. 
V.  Wells,  417. 
Craige  v.  Morris,  94. 
Craige's  Appeal,  291. 
Grain  v.  McGoon,  228. 
Cramer  v.  Hoose,  268. 
Crane  v.  BoUes,  24. 
V.  Brigham,  16. 
V.  Caldwell,  193. 
V.  Palmer,  90. 
V.  Turner,  185. 
V.  Waggoner,  117. 
Cranson  v.  Cranson,  105. 
Crary  v.  Goodman,  465. 
Crawford  v.  Edwards,  206. 
V.  Scoville,  385. 
V.  Simon,  227.  239. 
V.  Wearn,  174. 
Crawl  V.  Harrington,  89,  lOff. 
Creecy  v.  Pearce,  90. 
Creek  v.  Waterworks  Co.,  370. 
Creel  v.  Kirkham,  154. 
Cregier,  In  re,  92. 
Crerar  v.  Williams,  301. 
Cresinger  v.  Welch,  382. 
Cresson  v.  Stout,  19. 
Crews'  Adm'r  v.  Hatcher,  288,  289. 
Crlne  v.  Tifts,  7. 
Crispen  v.  Hannavan,  467. 
Criswell  v.  Ginimbling.  59. 
Critchfield  v.  Remaley,  161. 
Crittenden  v.  Johnson,  89. 
Crocker  v.  Pierce,  447. 

V.  Society,  175. 
Crockett  v.  Crockett,  63,  64. 
V.  Maguire,  223. 
V.  Railway  Co.,  IQS. 
Crofts  V    Middleton,  305. 
Croker  v.  Trevithin,  395. 
Crommelin  v.  Thiess.  147. 
Cromwell  v.  Insui-ance  Co.,  198. 
Cronkhite  v.  Cronkhite,  350,  351,  353. 
Crook  V.  Hewitt  143. 
Crooker  v.  Jewell,  209. 
Crosby  v.  Huston,  190. 
V.  Loop,  148. 
v.  Parker,  425. 


516 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Crosdale  v.  Lanlgan.  IGS. 
Gross  V.  Everts,  122,  123. 

V.  Lewis,  '6^2,  3(i3. 

V.  Taylor,  4U-1. 

V.  Upson,  159. 

V.  Weare,  125. 
Crouch  V.  Puryear,  64. 
Crow  V.  Couaut,  229. 

V.  Wolbert,  359. 
Crowell  V.  Currier,  20S. 

V.  Woodbury,  346. 
Croxall  V.  Sbererd.  256,  288,  291,  297. 
Crozler  v.  Bray,  285. 
Cruger  v.  Dougherty,  491. 

V.  Jones,  273. 

V.  McLaury.  378. 
Cnimlish  v.  Railroad  Co.,  227. 
Cubbius  V.  Ayres,  19. 
Cubit t  V.  Porter,  3U6. 
Cullen  V.  Trust  Co.,  196,  204. 
Cullum  V.  Erwin,  210. 
Culver  V.  Harper,  90. 
Cummings  v.  Glass,  434. 

V.  Wyman,  340,  4G3. 
Cumston  v.  Bartlett,  316. 
Cunningham  v.  Brumback,  459. 

V.  Freeborn,  427. 

V.  Holton,  163. 

V.  Moody,  78. 

V.  Morrell,  441. 

V.  Railroad  Co.,  250. 

V.  Shannon.  110. 

y.  Snow,  409. 

T.  Webb,  426. 
Cupples  V.  Galligan,  230. 
Curllng'3   Adm'rs  v.   Curling's  Heirs, 

277. 
Curran  v.  Smith,  15. 
Currle  v.  Donald,  432. 
Currier  v.  Barker,  161. 

V.  Earl,  156,  158 

V.  Gale.  228. 
Curry  v.  Bott,  80. 
Curtis  V.  Buckley,  191. 

V.  Oockrell,  114. 

V.  Galvin,  158. 

V.  Gardner,  350. 

V.  Hobart,  9<5,  99. 

v.  Lukln,  331. 

V.  Lyman,  222. 

V.  Mundy,  214. 

V.  Railroad  Co.,  372. 


Curtis  V.  Root,  225. 
Curtiss  v.  White,  137. 
Gushing  v.  Blake,  78,  258,  259. 

V.  Hurd,  209. 
Cuthbertson  v.  Irving,  450. 
Cutler  V.  Clemenston,  210,  244. 

V.  James,  223. 

V.  Smith,  166. 
Cutter  V.  Cambridge,  462. 
CuttJS  V.  Com.,  34. 

V.  Manufacturing  Co.,  185. 


D 

Daggett  V.  Rankin,  191, 
Dail  V.  Moore,  438. 
Dailey  v.  Abbott,  200. 

V.  Kastell,  216. 
Daily  v.  State,  362. 
Dalby  v.  Hirst,  140. 
Dale's  Case,  57. 
Daley  v.  Quick,  142. 
Dalton  V.  A_ngus,  353. 

V.  Smith,  247. 

V.  Webb,  125. 
Daly  V.  Willis,  107. 
Damm  v.  Damm,  236. 
Dan  V.  Lougstreet,  344. 
Dana  v.  Bank,  263. 
Daniel  Bell,  The,  6. 
Daniel  v.  Coker,  200,  201, 

V.  North,  353. 

V.  Wilson,  20G. 
Daniels  v.  Bond,  157. 

V.  Brown,   154. 

V.  Daniels,  343. 

V.  Eldredge,  326. 

V.  Pond,  17,  18. 

V.  Richardson,  71. 
Danville  Seminary  v.  Mott,  845. 
Danziger  v.  Silberthau,  60. 
Darby's  Lessee  v.  Mayer,  479. 
Darcus  v.  Crump,  301. 
Dare  v.  Heathcote,  353. 
Dareus  v.  Crump,  284. 
Darlington  v.  Darlington,  24. 

v.  Painter,  309. 
Darst  V.  IMurphy,  188. 
Dart  V.  Dart,  415. 
Dashiel  v.  Collier,  97. 
Dates  V.  Winstanley,  237. 


CASES  CITED. 


617 


P'he  figures  refer  to  pages.] 


Datesman's  Appeal.  61. 
Daughaday  v.  Paine,  193. 
Dausch  V.  Crane,  402,  469. 
Davenport  v.  Alston,  120. 

V.  Farrar,  89. 

V.  Kirkland,  24,  327. 

V.  Lampson,  361. 

V.  Reg.,  174. 

V.  Shants,  15,  21. 
Davidson  v.  Heydom,  334. 

V.  Manufacturing  Co.,  143. 

V.  Young,  453. 
Davie  V.  Stevens,  38. 
Davles,  Ex  parte,  327. 

V.  Speed,  299. 
Davies'  Trusts,  In  re,  317. 
Daviess  v.  Myers,  60. 
Davis  V.  Andrews.  121. 

V.  Bartliolomew,  93. 

V.  Bean,  202. 

V.  Brandon,  429. 

V.  Brocklebanli,  9. 

V,  Buffum,  22. 

V.  Clarli,  64. 

V    Coburn,  275. 

V.  Davis,  100,  433. 

V.  Dendy,  202. 

v.  Dickson,  303. 

V.  Emery,  14. 

V.  Eyton,  9. 

V.  Gilliam,  63,  64,  72. 

V.  Givens,  341. 

V.  Hayden,  415. 

V.  Hess,  425. 

V.  Holmes,  248. 

T.  Kelley,  121. 

V.  Kirk,  475. 

V.  Logan,  93. 

V.  McArthur,  467. 

V.  Mason,  75,  76,  77. 

V.  Payne's  Adm'r,  146. 

V.  Pierce,  231. 

T.  Power  Co.,  142. 

V.  Spaulding,  371. 

V.  State,  125. 

V.  Stonestreet,    190. 

V.  Thompson,  9,  157. 

V.  Townsend,  67. 

V.  Walker,  101. 

V.  Wetherell,  91. 
Davis*  Adm'r  v.  Smith,  158* 


Davis   Sewing-Mach.   Co.  v.  Barnard, 

385. 
Davison  v.  Stanley,  409. 

V.  Whittlesby,  95. 
Dawkins  v.  Penryhn,  395. 
Dawley  v.  Ayers,  113,  121. 
Dawson  v.  Clarke,  267. 

V.  Danbuiy  Bank,  217, 

V.  Drake,  200. 

V.  Parsons,  93. 
Day  V.  Adams,  439. 

V.  Clark,   213. 

V.  Cochran,  74-78. 

V    Watson,   141. 
Dayton  v.  Corser,  104. 

V.  Dayton,  245. 

V.  Newman,  433. 

V.  Vandoozer,  8. 
Deacons  of  Cong.   Church  In  Auburn 

V.  Walker,  421. 
Dean  v.  Long,  216. 

V.  McLean,  1(>6. 

V.  ^lumford,  330. 

V.  Shelly,  440. 
Deane  v.  Hutchinson,  19. 
Deans  v.  Pate,  105. 
Dearing  v.  Thomas,  120. 
Deaton  v.  Taylor,  152. 
Deavitt  v.  Judevine,  237. 
Debow  V.  Colfax,  9,  62. 
Dech's  Appeal,  342. 
Decker  v.  Livingston,  71,  343. 
De  Cordova  v.  Hood,  193. 
Deere  v.  Chapman,  116. 
Deerfield  v.  Railroad  Co.,  362. 
Deering  v.  Kerfoot's  Ex'r,  93. 

V.  Tucker,  33. 
Deering  &  Co.  v.  Beard,  121. 
De  France  v.  Johnson,  84. 
Defi-aunce  v.  Brooks,  37. 
Degory  v.  Roe,  436. 
Degraffenreid  v.  Scruggs,  13. 
De  Grey  v.  Richardson,  76,  79. 
De  Haro  v.  U.  S.,  167. 
Dehoney  v.  Bell,  93. 
Dei  V.  Habel,  114. 
Dejarnatte  v.  Allen,  62,  72. 
De  Lancey  v.  Piepgras,  459. 

V.  Steams,  427. 
Delaney  v.  Fox,  144,  145. 
Delano  v.  Montague,  164;. 


618 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Delaunay  v.  Burnett,  404. 
Delaware,  L.  &  W.  R.  Co.  v.  Sander- 
son, 4. 
Demarest  v.  Willard,  135,  139. 
Demby  v.  Parse,  20. 
Demill  v.  Reid.  287,  289. 
Deming  v.  Bullitt,  430. 

V.  Comings,  243. 
De  Mott  V.  Hiigerman,  154. 

V.  Manufacturing  Co.,  204. 
Den  V.  Adams,  104. 

V.  Cooper,  273. 

V.  Cox,  48. 

V.  Demarest,  75. 

V.  Drake,  161. 

V.  Dubois,  49. 

V.  Fogg,  48. 

V.  Hanee,  301. 

V.  Howell,  158. 

V.  Huuipiiries,  9,  159. 

V.  Hyatt,  49. 

V.  Johnson,  106. 

V.  Jones,  485. 

V.  Kinney,   64. 

V.  Lake,  48. 

V.  Post,  141. 

V.  Railroad  Co.,  176. 

V.  Sauls,  81. 

V.  Troutman,  272. 

V.  Wanett,  76. 

V.  Ward,  81. 
Dendy  v.  Nicholl,  175. 
Denfield,  Petitioner,  173. 
Denn  v.  Roake,  316. 
Dennett  v.  Codman,  234. 

V.  Dennett,  282,  294. 

V.  Hopkinson,  8. 

V.  Pass,  377. 
Dennis  v.  McCagg,  271. 

V.  Wilson,  354,  418. 
Denton  v.  Nanny,  89,  90,  235. 
Denton's  Guardians  v.  Denton's  Ex'rs, 

80. 
Denu  V.  Cornell,  454. 
Denver,  M.  &  A.  Ry.  Co.  v.  Lockwood, 

420. 
Department  of  Public  Parks,  In  re,  3. 
De  Puy  V.  Strong,  343. 
Derby  v.  Derby,  277. 
Derrick  v.  Luddy,  144. 
Derry  Bank  v.  Webster,  434. 
De  Rush  V.  Brown,  89. 


De  Ruyter  v.  St.  Peter's  Church,  246. 

Deshler  v.  Beery,  110. 

Desilver's  Estate,  In  re,  31. 

Des  Moines  &  Ft.  D.  11.  Co.  v.  Lynd, 

451. 
Desnoyer  v.  Jordan,  70. 
Despard  v.  Walbridge,  144. 
Detmold,  In  re,  396. 
Detroit  Sav.  Bank  v.  Trusdail,  204. 
Detroit  &  B.  Plank-Road  Co.  v.  De- 
troit S.  Ry.  Co.,  167. 
De  Uprey  v.  De  Uprey,  345. 
De  Veaux  v.  Fosbender,  223. 
Devereux  v.  McMahon,  430. 
Devin  v.  Hendershott,  272. 

V.  Himer,  428. 
Devinney  v.  Reynolds,  432. 
Dew  V.  Kuehn,  57. 
Dewal  V.  Becker,  358. 
Dewey  v.  Lambier,  343. 

V.  Moyer,  265. 

V.  Williams,  176. 
Dewltt  V.  Eldred,  51. 

V.  Harvey,  355. 

V.  Pierson,  141. 

V.  San  Francisco,  333,  334. 
De  Wolf  V.  Johnson,  207. 

V.  Murphy,  90. 
Dexter  v.  Hall,  431. 

V.  Harris,  222. 

V.  Manley,  138. 
Dey  V.  Dunham,  187,  214. 

V.  Greenebaum,  149. 
D'Eyncourt  v.  Gregory,  18,  20. 
Deyo  V.  Bleakley,   134. 
Diamond  v.  Turner,  489. 
Dick  V.  Doughten,  105. 

V.  Insurance  Co.,  199. 

V.  Moon,  204. 
Dickenson  v.  Wright,  394. 
Dickerson  v.  Colgrove,  452. 

V.  Cuthburt,  127. 
Dickey  v.  Lyon,  217. 

V.  M'Cullough,   175. 

V.  Thompson,  237. 
Dickinson  v.  Hoomes'  Adm'r,  449. 
Dickson  v.  Desire's  Adm'r,  443. 
Dietrick  v.  Noel,  465. 
Dikes  v.  Miller,  409. 
Dillahunty  v.  Railway  Co.,  447. 
Dillaye  v.  Greenough,  266. 
Dillard  v.  Dillard's  Ex'rs,  387. 


CASES  CITED. 


619 


[The  figures  refer  to  pages.] 


Dlllman  v.  Bank,  120. 

Doe  V.  Cole,  305,  407. 

Dillon  V.  Dillon,  54. 

V.  Considine,    283,    ?S5,    288, 

292 

V.  Reilly,  328. 

293. 

Dilworth  v.  Gusky,  38. 

V.  Cooper,  287,  297. 

Dinehart  v.  Wilson,  154. 

V.  Courtnay,  409. 

Dingley  v.  Dingley,  288. 

V.  Cox,  156. 

Dinwiddie  v.  Smith,  434. 

V.  Craig,  302. 

Dircks  v.  Brant,  9. 

V.  Craigen,  49. 

Dlsher  v.  Disher,  60,  64. 

V.  Crick,  102. 

Diver  V.  Diver,  338. 

V.  Day,  133. 

Dixon  V.  Buell,  147. 

V.  Dorvell,  287. 

V.  Clow,  142. 

V.  Dunbar,  162. 

V.  Dixon,  194. 

V.  Earl  of  Burlington,  65^ 

V.  Hill,  215. 

V.  Eyre.  302. 

V.  NiccoUs,  148,  154,  155. 

V.  Gatacre,  294. 

V.  Stewart,  144. 

V,  Glover,  395. 

D.  M.  Osborne  &  Co.  v.  Schoonmaker, 

V.  Grady,  57. 

121. 

v.  Gregory,  464. 

Doane  v.  Badger,  356. 

V.  Harter,  39. 

V.  Doane,  116. 

V.  Hawke,  396. 

Dobbin  v.  Rex,  346. 

V.  Hazell,  161. 

Dobson's    Adm'r   v.    Butler'a   Adm'r, 

V.  Howell,  285,  294,  301. 

114. 

V.  Hull,  163,  464,  468. 

Dobson's  Estate,  24. 

V.  Johnson,  152. 

Dockham  v.  Parker,  155. 

V.  Jones,  144,  175,  317,  456: 

Docktermann  v.  Elder,  93. 

V.  Knight,  433. 

Dodd  v.  Acklom,  409. 

V.  Ladd,  318. 

V.  Adams,  394. 

V.  Lewis,  68. 

V.  Burchell,  360. 

V.  Luxton,  68. 

V.  Holme,  365. 

V.  M'Kaeg,  158. 

y.  Witt,  422. 

V.  McLoskey,  19a 

Dodge  V.  Davis,  66,  342. 

V.  Manning,  392. 

V.  Evans,  192. 

V.  Meux,  152. 

V.  Williams,  24. 

■     V.  Miller,  152,  156. 

Dodson  V.  Hay,  78. 

V.  Moore,  289. 

Dodson's  Appeal,  120. 

V.  jNIoi-phett,  162. 

Doe  V.  Abey,  333. 

V.  Oliver,  451. 

V.  Allen,  38,  152. 

V.  Palmer,   162. 

V.  Allsop,  222. 

V.  Passingham,  25ft. 

V.  Amey,  156. 

V.  Patten,  38. 

V,  Barnard,  467. 

V.  Pearson,  395. 

V.  Bateman,  148. 

V.  Peck,  135. 

V.  Bell,  132. 

V.  Perryn,  288. 

V.  Benjamin,  132. 

V.  Poole,  409. 

V.  Bernard,  94. 

V.  Porter,  160. 

V.  Bliss,  175. 

V.  Provoost,    288. 

V.  Britain,  322. 

V.  Reed,  223,  408. 

V.  Brown,  467. 

V.  Rees,  144.  152. 

V.  Carter,  467. 

V.  Reynolds,  145. 

V.  Challis,  323. 

V.  Richards,  3a 

V.  Chamberlaine,  156. 

V.  Rles,  132. 

V.  Clarke,  290. 

V.  Roach,  285. 

620 


CASES  CITED. 


[The  figures  refer  *o  pages.] 


Doe  V.  Robertson,  383. 

V.  Kobiusuii,  G8. 

T.  Roe,  74,  300,  470. 

V.   Rushaiu,  3'J3. 

V,  Seudamore,  79,  SOL 

V.  Seatou,  137. 

V.  Selby.  285. 

V.  SUirrow,  456. 

V.  Smaridge,  159. 

V.  Smeddle,  47. 

V.  Smith,   102. 

V.  Stratton,  132. 

V,  Timins,  475. 

V.  Tuiiuell,   184. 

V.  Watts,  101. 

T.  Webb,  287. 

V.  Wells.  144. 

V.  Williams,  102. 

V.  W^orsley,  287. 
Doebler's  Appeal,  40. 
Doed  V.  Whichelo.  485. 
Doescher  v.  Doescher,  181. 
Dold  V.  Geiger's  Adm'r,  71. 
Dolde  V.  Vodicka,  421. 
Dolittle  V.  Eddy,  100. 
Dolph  V.  White,  137. 
Dommett  v.  Bedford,  396. 
Donahue's  Estate,  In  re,  41,  479. 
Donald  v.  Elliott,  66,  143. 
Donalds  v.  Plumb,  273. 
Dondero  v.  Vansickle,  346. 
Dougrey  v.  Topping,  110. 
Donlin  v.  Bradley,  238. 
Donnelly  v.  Donnelly's  Heirs,  84. 

V.  Simonton,  229. 
Douohue  V.  Chase,  200. 

V.  MeNichol,  171. 
Donovan  v.  Donovan,  193. 
Dooley  v.  Crist,   10. 

V.  Potter,  202. 
Doollttle  V.  Tice,  459. 
Doremus  v.  Doremus,  107. 
Doren  v.  Gillnm,  284. 
Dorkray  v.  Noble,  230,  23L 
Dorr  V.  Dudderar,  195. 
Dorrel  v.  Andrews,  141. 
Dorsett  v.  Gray,  143. 
Dorsey  v.  Hall,  184. 

V.  Smith,  60. 
Doswell  V.  De  I.a  Ijanza,  467. 
Doton  V.  Russell,  228. 


Doty  V.  Hendrix,  109. 

V.  TeUer,  53. 
Douglas  V.  Coonley,  357, 

V.  West,  435. 
Douglass  V.  Cline,  242. 

V.  Dickson,  85. 

V.  Durin,  212. 

V.  McCrackin,  218. 

V.  McKeever,  493. 

V.  Wells,  208. 

V.  Wiggins,  65. 
Doupe  V.  Gerrin,  139. 
Dow  V.  Doyle,  477. 

V.  W^hitney,   223. 
Dowd  V.  Tucker,  271. 
Dowling  V.  Hemings,  368. 
Downard  v.  GrofC,  10,  196. 
Downer  v.  Miller,  204. 
Downer's  Adm'rs  v.  Smith,  444. 
Downes  v.  Long,  288. 
Downing  v.  Marshall,  478. 

V.  jNlayes,  400. 
Downs  V.  Allen,  95. 
Doyle  T.  Coburn,  114,  122. 

V.  Lord,  364. 

V.  Mellen,  195. 

V.  Mullady,  51. 

V.  Railway  Co.,  139. 
Doyley  v.  Attorney  General,  314. 
D'Oyly  V.  Capp,  182. 
Dozier  v.  Gregory,  05. 

v.  Mitchell,  201. 
Drake  v.  Drake,  313. 

V.  Lacoe.  149,  151. 

V.  Moore,  117. 

V.  Paige,  185. 

V.  Root,  119. 

V.  W^ells,  349,  407. 
Drane  v.  Gregory's  Heirs,  144. 
Draper  v.  Di-aper,  180. 

V.  Morris,  110. 
Drda  v.  Schmidt,  148. 
Dreutzer  v.  Bell,  393. 
Drew  V.  Swift,  422. 
Driscoll  V.  Marshall,  166. 
Driver  v.  Edgar,  284. 
Drost  V.  Hall,  99. 
DroPte  V.  Hall,  98. 
Drown  v.  Smith,  63,  64. 
Druid  Park  Heights  Co.  of  Baltimor* 
City  V.  Oettlnger,  315, 


CASES  CITED. 


521 


[The  figures  refer  to  pages.] 


Drury  v.  Bachelder,  121. 

V.  Drury,  1U7. 

V.  Foster,  428. 

V.  Kent,  375. 
Drybutter  v.  Bartholomew,  25. 
Dubois  V.  Beaver,  4. 

V.  Campau,  34L 

V.  Kelly,  17,  22. 

V.  Ray,  324. 
Du  Bois  V.  Kay,  324. 
Dubs  V.  Dubs,  78. 
Dubuque  v.  Conian,  461. 
Dubuque  Nat.  Bauk  v.  Weed,  186. 
Dubuque    &  P.   R.   Co.  v.   Litchfield, 

401. 
Duclaud  V.  Rousseau.  184. 
Ducote  V.  Rachal,   12u. 
Dudden  v.  Guardians  of  Poor  of  the 

Glutton  Union.  371.. 
Dudley  v.  Bosworth,  268. 

V.  Easton,  104. 

V.  Foote,  14. 

V.  Warde,  20. 
Duer  V.  Boyd,  49. 
Duffy  V.  Duffy,  109. 
Dugdale,  In  re,  395. 
Dugger  V.  Dugger.  78. 
Duinneen  v.  Rich,  350. 
Duke  V.  Brandt,  106. 

V.  Bulme,  192. 

V.  Compton.  148. 
Duke  of   Cumberland   v.   Codrington, 

205. 
Duke  of  Devonshiire  v.  Eglin,  168. 
Duke  of  Norfolk's  Case,  32G. 
Duke  of  Somerset  v.  Fogwell,  374,  415. 
Dulanty  v.  Pynchon.  122. 
Dumpor's  Case,  175. 
Dunagan  v.  Webster,  125. 
Duncan  v.  City  of  Terre  Haute,  105. 

V.  Dick,  83. 

V.  Drury,  231. 

y.  Forrer,  343. 

V.  Hodges.  428. 

V.  Miller,  181. 

V.  Rodecker,  357. 

V.  Sylvester.  344,  345. 
Duncklee  v.  Webber,  138. 
Dungannon  v.  Smith.  324. 
Dimham  v.  Kirkpatriok,  7. 

v.  Provision  Co.,  182. 
Dunklee  v.  Adams.  176. 


Dunklee  v.  Railroad  Co.,  352,  445. 
Dunlap  V.  Stetson,  423. 
Dunman  v.  Railway  Co.,  22. 
Dunn  V.  Flood,  327. 

V.  Games,  417. 

V.  Robbins,  135. 
Dunn  y.  Sharpe,  182, 
Dunn  V.  Zwilling,  263. 
Dunning  v.  Bank,  2u9. 
Dunphy  y.  Goodlander,  150. 
Dunscomb  v.  Dunscomb,  78. 
Dunseth  y.  Bank,  97. 
Dunton  v.  McCook,  187,  468. 

V.  Woodbury,  121. 
Dunwoodie  v.  Reed,  302. 
Durando  v.  Durando,  91,  92. 
Durant  v.  Muller,  53. 
Durel  y.  Boisblanc,  364. 
Dui-ette  y.  Briggs,  193. 
Durfee  y.  Joslyn,  487. 
Durham  v.  Angler,  111. 
Durkee  v.  Felton.  102. 
Dussaume  v.  Burnett,  437. 
Dustin  V.  Cowdry,  165. 

v.  Steele,  107. 
Dutton  V.  Ives,  211,  232. 

y.  McReynoIds.  225. 

y.  Warschauer,  184. 
Duty  v.  Gi-aham,  240. 
Duval  y.  Becker,  195. 
Dwight  y.  Eastman.  289. 
D'Wolf  V.  Gardner.  322. 
Dwyre  v.  Speer.  420. 
Dye  y.  Mann,  123,  240. 
Dyer  v.  Bank.  494. 

y.  Clark.  93,  340. 

y.  Sanford,  1<">7,  357. 
Dyer's  Appeal,  2(>2. 
Dyett  y.  Pendleton.  138. 
Dyke  v.  Rendall.  I(t8. 
Dyson  y.  Sheley,  119. 


E 


Eager  v.  Furnlvall.  75. 
Eagle  V.  Emmet.  99. 

v.  Swayze,  139. 
Eagle  Fire  Ins.  Co.  v.  Cammet,  246. 
Eales  V.  Drake,  317. 
Earl  V.  De  Hart.  SCS,  371. 
Earle  v.  Fiske,  224, 


522 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Earle's  Adm'rs  v.  Earle,  435. 

Earl  of  Buckinghamshire  v.  Drury,  107. 

Earnhart  v.  Earnhart,  297. 

Eastman  v.  Batchelder,  181. 

Easton  v.  Banli,  250. 

East   Tennessee    Iron   &   Ck>al   CJo.    v. 

Wlggin,  457,  4G1. 
Eaton  V.  Eaton,  384. 

V.  Simonds,  91,  202. 

V.  Straw,  308. 

V.  Winnie,  1G6. 
Eberlein  v.  Abel,  1G2. 
Ebert  v.  Wood,  344. 
Eberts  v.  Fisher,  344. 
Ecclesiastical  Com'rs  v.  Kino,  364. 

V.  O'Connor,  141. 
Echols  V.  Cheney,  432. 
Eckford  v.  Berry,  189. 
Eckman  v.  Eckman,  410. 

V.  Soott,  121. 
Eddy  V.  St.  Mars,  472. 
Edesheimer  v.  Quackenbush,  188. 
Edgar  v.  Jewell,  154. 
Edgerton  v.  Jones,  438. 

V.  McMullan,  357. 
Edgerton  v.  Page,  141. 

V.  Young,  231. 
Edmands  v.  Insurance  Co.,  198. 
Edminster  v.  Hlggins,  192. 
Edmondson  v.  Welsh,  85. 
Edrington  v.  Harper,  71. 
EdseU  V.  Buchanan,  238. 
Edson  V.  Munsell,  468. 
Edwards  v.  Banksmith,  218. 

V.  Bibb,  86,  88. 

V.  Hammond,  171. 

V.  Thompson,  217. 

V.  Trumbull,  192. 
Edwardsville  R.  Co.  v.  Sawyer,  36. 
Egbert  v.  Egbert,  114. 
Ege  V.  Medlar,  78. 

V.  Medlay,  77. 
Egerton  v.  Brownlow,  299,  300. 

V.  Massey,  294. 
Egerton's  Case,  262. 
Eggert  V.  Beyer,  226. 
Eggleston  v.  Bradford,  420. 
Ehle  V.  Brown,  217,  225. 
Ehrisman  v.  Sener,  59. 
Eichengreen  v.  Appel,  163. 
Ekin  V.  MeCracken,  384. 
Elam  V.  Parkhill,  20,  61. 


Eldredge  v.  Torrestal,  91. 
Eldridge  v.  Parish,  465. 
l!:ilicott  V.  Mosier,  98,  100. 

V.  Pearl,  459,  462. 

V.  Welch,  90. 
Elliot  v.  Carter,  474. 

V.  Railway  Co.,  369. 

V.  Smith,  61,  144,  145,  304. 
ElUott  V.  Elliott,  327,  328. 

V.  Parker,  493. 

V.  Pearsoll,  51. 

V.  Pray,  142. 

V.  Sleeper,  416. 
Ellis  V.  Alford,  38a. 

V,  Dittey,  75. 

V.  Drake,  243. 

V.  Leek,  248. 

V.  Page,  475. 

V.  Paige,  150,  157. 

V.  White,  113. 
Ellison  V.  Daniels,  196. 
Ellsworth  V.  Cook,  75. 

V.  Lockwood,  203. 

V.  Nelson,  493. 

V.  Railroad  Co.,  428. 
Elmendorf  v.  Lockwood,  110. 
Elmer  v.  Loper,  202. 
Elmore  v.  Elmore,  119. 
Elston  V.  Jasper,  131. 
Elwes  V.  Maw,  17,  20. 
Elwood  V.  Klock,  386. 
Ely  V.  Dix,  322. 

V.  Ely,  199,  229. 

V,  Scofield,  226. 

V.  Wilcox,  217,  220,  222. 
Elyton  Land  Co.  v.  Denny,  111. 

V.  South  &  North  Alabama  R.  Oo. 
171. 
Emans  v.  Turnbull,  470,  471. 
Embrey  v.  Owen,  369,  370. 
Emerson  v.  Atwater,  187. 

V.  Cutler,  336. 

V.  Mooney,  351. 

V.  Proprietors  of  Land,  448. 
Emerson's  Homestead,  In  re,  116. 
Emery  v.  Chase,  264. 
V.  Darling,  489. 
V.  Fowler, '425. 

V.  Van  Syckcl,  41. 
Emmons  v.  Scudder,  164, 
Emson  v.  Polhemus,  344. 
Engel  V.  Ayer,  36. 


CASES   CirED. 


523 


[The  figures  refer  to  pages.] 


Engle  V.  Hall,  230. 

V.  White,  489. 
Bngleman    Transp.    Oo.    v.    Longwell, 

200. 
English  V.  Young,  408. 
Ennor  v.  Thompson,  188. 
Ensminger  v.  People,  5,  370. 
Enyard  v.  Nevins,  346. 
Episcopal    City   Mission    v.   Appleton, 

170. 
Equitable  Trust  Co.  v.  Christ,  12. 
Erb  V.  Brown,  358. 
Erickson  v.  Willard,  261. 
Erskine  v.  Davis,  417. 
Ervln  V.  Morris,  456. 
Erwin  v.  Olmsted,  340. 
Eschmann  v.  Alt,  246. 
Espley  V.  Wilkes,  361. 
Estabrook  v.  Hapgood,  60. 

V.  Smith,  445,  446. 
Ettlinger  v.  Carpet  Co.,  245. 
Eulrich  v.  Richter,  369,  37L 
Evans  v.  Brady,  36. 

V.  Caiman,  118. 

V.  Evans,  77,  88. 

V.  Horan,  384. 

V.  Iglehart,  9. 

V.  Kimball,  231. 

V.  Kingsberry,  23,  24. 

V.  Lobdale,  80,  83. 

V.  ^IcKanua,  153. 

V.  Walker,  323. 
Evelyn  v.  Evelyn,  205. 
Everly  v.  Harrison,  270. 
Eversole  v.  Early,  447. 
Everts  v.  Agnes,  215,  436. 
Ewer  V.  Hobbs,  183. 
Ewing  V.  Burnet,  460. 

V.  Elcorn,  459. 

V.  Shannahan,  36,  37. 
Ewing's  Lessee  v.  Burnet,  462. 
Excelsior  Fire  Ins.  Co.  v.  Royal  Ins. 

Co.,  199. 
Exton  V.  Scott,  433. 
Eyrick  v.  Hetrick,  396. 
Eyster  v.  Hatheway,  126. 


P 

Eager  v.  Campbell,  494. 
Fairbank  v.  Cudworth,  195. 


Fairchild  v.  Chastelleux,  7L 

V.  Chaustelleux,  71. 

V.  Fairchild.  340. 

v.  Marshall,  109. 
Faivre  v.  Daley,  122. 
Falhers  v.  Corbret,  378. 
Fallass  v.  Pierce,  213. 
Falls  V.  Wright,  101. 
Falls   Manuf'g   Co.   v.    Oconto   River 

Imp.  Co.,  6. 
Falls  of  Neuse  Manuf'g  Co.  v.  Brooks, 

461. 
Faloon  v.  Simshauser,  470. 
Fanning  v.  Willcox,  467. 
Farewell  v.  Dickenson,  378. 
Farinholt  v.  Luckhard,  126. 
Farley  v.  Craig,  377. 

V.  Parker,  384. 
Farmer  v.  Farmer,  384, 

V.  Simpson,  125. 
Farmers'  Loan  &  Trust  Co.  v.  Grape 
Creek  Coal  Co.,  241. 

V.  Hendrickson,  14,  16. 

V.  St.  Joseph  &  D.  C.  R.  Co.,  14. 
Farmers'  Nat  Bank  v.  Fletcher,  211. 
Farmers'  &  Manufacturers'   Bank   v. 

Haight,  429. 
Farmers'  &  Mechanics'  Bank  v.  Greg- 
ory, 338. 
Farmers'  &  Merchants'  Nat.  Bank  v. 

Wallace,  338. 
Farncombe's  Trusts,  In  re,  312. 
Farnum  v.  Metcalf,  234. 

V.  Piatt,  361. 
Farrar  v.  Bridges,  433. 

V.  Chauffetete,  12,  19. 

V.  Heinrich,  457,  458,  465. 

V.  Stackpole,  14. 
Farrington  v.  Barr,  266. 
Farris  v.  Farris,  269. 

V.  Houston,  200. 
Farrow's  Heirs  v.  Edmundson,  158. 
Farwell  v.  Antis,  237. 
Fash  V.  Blake,  428. 
Fassett  v.  Smith,  214. 
Faulkner  v.  Wynford,  313. 
Faulkner's  Adm'x  v.  Brockenbrough, 

184. 
Fauntleroy's  Heirs  v.  Dunn,  408. 
Faure  v.  Winans,  199. 
Fay  v.  Brewer,  05. 

T.  Muzzey,  17. 


524 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Fay  V.  Taft,  255. 

V.  Valentine,  213. 
Faylor  v,  Brice,  151. 
Featlierstoubaugb  v.  Fenwlck,  270. 
Feger  v.  Keefer,  490. 
Felcher  v.  McMillan,  16. 
Feldes  v.  Duncan,  121. 
Feigner  v.  Hooper,  255. 
Feliz  V.  Fellz,  341. 
Felton  V.  Billups,  484. 

V.  Le  Breton,  250. 

V.  West,  241. 
Fennell  v.  Guffiey,  149. 
Fentiman  v.  Smith.  168. 
Fenton  v.  Circuit  Judge,  345. 

V.  Miller.  335. 

V.  Moutgomery,  143. 

V.  Reed.  84. 
Fergus  v.  Wilmarth,  198. 
Ferguson  v.  Glassford,  227,  230. 

V.  Kingsland,  437. 

V.  Kumler,  122. 

V.  Thoiiiii.^on.  38. 

V.  Tweedy,  79. 
Ferrall  v.  Kent,  154. 
Ferrel  v.  Woodward,  380. 
Ferrier  v.  Jay,  316. 
Ferris  v.  Coover,  491. 

V.  Ferris,  l(i9. 

V.  Quinby,  15. 
Ferry  v.  Buruell,  95. 
Festing  v.  Allen,  293. 
Fetrow  v.  Merriwether,  410. 
Fetters  v.  Humphreys,  354. 
Fidelity  Insurance.  Trust  &.  Safe-De- 
posit Co.  V.  Dietz,  290. 
Fidler  v.  Lash.  317. 
Fiedler  v.  Darrin,  188. 
Field  V.  Barling.  3.  364. 

V.  Driving  Co.,  370. 

V.  Herrick,  131. 

V.  Howell.  133. 

V.  Mark.  359. 
Fields  V.  Austin,  115. 

V.  Bush.  59. 

V.  Watson.  297. 
Filbert  v.  Hoff.  341. 
Fillebrowu  v.  Hoar.  140. 
Final  v.  Backus,  438. 
Finch  V.  Turner,  489. 
Flndlay  v.  Smith,  63. 


Finkelsteln  v.  Herson,  161. 
Flnlay  v.  King,  172. 

V.  Mitchell,  172. 
Flnley  v.  Hogan,  461. 

V.  Simpson,  378,  432. 
Firestone  v.  Firestone,  105. 
First  Nat.  Bank  v.  Andrews,  210. 

V.  Bruce,  125. 

V.  Caldwell,  192. 

V.  Essex,  232. 

V.  Hanna,  487. 

V.  Salem  Capital   Flour-Mills  Co., 
194. 

V.  Security  Bank,  441. 
Fischer  v.  Silkmaun,  468. 
Fish  V.  Capwell,  167. 

V.  French,  211. 

V.  Glover,  208. 
Flshback  v.  Lane,  123. 
Fisbburne  v.  Engledove,  145. 
Fisher  v.  Cornell,  121. 

V.  Deering.  148. 

V.  Dixon.  20. 

v.  Edington,  294. 

V.  Fields,  261.  262. 

V.  Hall.  433,  435. 

V.  Lighthall,  139. 

V.  M  limine,  195. 

V.  Rochester,  423. 

V.  Saffer,  11. 

v.  Smith,  42-2. 

V.  Strickler,    410. 

V.  Taylor,  396. 
Fisk  V.  Eastman,  92. 
Fitch  V.  Baldwin,  444,  453. 

V.  McDowell,  211. 

V.  Pinckard.  209. 

V.  Rawling,  354. 

V.  Stallings,  202. 
Fitzgerald  v.  Anderson,  23. 

V.  Llbby,  223. 
Fitzhugh  V.  Croghan,  444, 

V.  Foote,  96. 

V.  Smith,  191. 
Fladnng  v.  Rose,  337. 
Flagg  v.  Bean,  80,  416. 

V.  Eames,  419. 

V.  Flagg,  197. 

V.  Geltmacher,  207. 

V.  Mann,  217. 

y.  Munn,  190. 


CASES  CITED 


625 


[The  figures  refer  to  pages.] 


Flanagan  v  Young,  438. 
Flanders  v.  Davis,  385. 

V.  Lamphear,  ISl,  197. 
Flannagan  v.  Philadelphia,  6, 
Fleet  V.  Doiland,  t>0. 

V.  Hegeman,  5. 
Fleetwood  v.  Lord,  113. 
Fleischman  v.  Toplitz.  153. 
Fleming  v.  Griswold,  4(39. 

V.  Townsend,  3'J3. 
Flentham  v.  Steward,  241. 
Fletcher  v.  Ashburner,  23,  24. 
V.  Bank,  125. 
V.  Boom  Co.,  423. 
V.  Carpenter,  210. 
V.  Gary,  243. 
V.  Fletcher,  48. 
V.  Holmes,  184. 
V.  Peck,  399. 
Flickinger  v.  Shaw,  1G7. 
Fliess  V.  Buckley,  209. 
Flood  V.  Flood,  164. 
Florida  S.  R.  Co.  v.  Loring,  462. 
Floumoy  v.  Flournoy,  72. 
Flower  v.  Blwood,  229. 

y.  Peck,  175. 
Flowers  v.  Flowers,  106. 
Fluke  V.  Fluke,  23. 
Flynn  v,  Flynn,  428. 
Fogarty  v.  Stack,  300. 
Foggv.  Fogg,  120. 
Folk  V.  Varn,  4344. 
FoUendore  v.  Thomas,  360. 
FoUett  V.  Grant,  443. 
Folsom  V.  Carli.  123. 
Folts  V.  Huntley,  140,  377 
Foltz  V.  Huntley,  377. 
Fonda  v.  Sage,  176. 
Fontaine  v.  Savings  Inst.,  85. 
Foot  V.  Dickinson.  304. 

V.  New  Haven  &  Northampton 
166. 
Foote  V.  City  of  Cincinnati,  153. 
V.  Colvin.  270. 
V.  Insurance  Co.,  198. 
Forbes  v.  Balenseifer,  850. 
V.  Dunham.  339. 
v.  Smith.  78. 
Force  v.  Dutcher,  432. 
Ford  V.  Cobb,  13. 
T.  Erskine,    101. 
V.  Ford,  110,  301,  474. 


Ford  V.  Gamer's  Adm'r,  32. 
V.  Gregory's  Heirs,  9,  428. 
V.  Harris,  357,  359. 
V.  Irwin,  188. 
V.  Johnson,  47. 
V.  Knapp,  345. 
V.  Marcall,  217. 
Fore  V.  Fore,  113,  114. 
Forsythe  v.  Ballance,  403. 

v.  Price,  8. 
Fort  V.  Allen,  453. 
Forth  V.  Chapman,  326. 

V.  Duke  of  Norfolk,  274. 
Ft.    Plain    Bridge    Co.  v.  Smith,  363, 

379,  380. 
Fosdick  V.  Fosdick,  325. 

V.  Gooding.  98. 
Foss  V.  Crisp,  81. 
Foster  v.  Browning,  350. 
v.  Cai-son,  220. 
V.  Dwinel,  89. 
v.  Fowler,  379. 
V.  Hickox,  247. 
V.  Hilliard,  60. 
V.  Joice,  36. 
V.  Mansfield,  434,  436. 
V.  Marshall,  73,  75,  80,  458. 
V.  Robinson,  9. 
T.  Van  Reed,  199. 
V.  Wright,  471. 
Foster's  Appeal.  226. 
Fothergil  v.  Fothergil,  318. 
Foulke  V.  Bond,  465. 
Fowler  v.  Bott,  140. 
V.  Fowler,  342. 
V.  Poling,  448. 
V.  Shearer,  106,  432. 
Fowley  v.  Palmer,  199. 
Fox  V.  B  ossom,  237. 
V.  Hinton,  462. 
Co,  V.  Phelps,  474. 

Fox's  Case,  148. 
Frafton  v.  Hawes,  427. 
Francestown  v.  Deering,  268. 
Francis  v.  Porter,  184,  240. 

V.  Wells,  192. 
Francis'  Appeal,  359. 
Frank  v.  Hicks,  185,  191. 
Frankenthal  v.  Mayer,  195. 
Franklin  v.  Osgood.  315. 

V.  Talmadge,  417. 
Franklin  Ins.  Co.  v.  Cousens,  359. 


CASES   CITEO. 


[The  figures  rofer  to  pages.] 


Fraser  v.  Trustees,  24. 
Fratcher  v.  Smith,  145. 
Frazer  v.  Hightower,  78. 
Frazier  v.  Caruthers,  152. 
Frederick's  Appeal,  473. 
Free  v.  Beatley,  93. 

V,  Stuart,  2?,. 
Freeman,  In  re,  80. 

V.  Foster,  448. 

V.  Huunewell,  142. 

V.  Pope,  393. 
Freiberg  v.  Walzem,  125. 
Preke  v.  Carbery,  475. 
French  v.  French,  406. 

V.  Fuller,  142. 

V.  Kennedy,  203. 

V.  Lord,  93,  1(>4. 

V.  Marstin,  BGO,  361. 

V.  Pearce,  404, 

V.  Peters,  9U. 

V.  Pratt,  9(J,  97. 

V.  Richards,  140. 

V.  Rollins,  59,  81. 

V.  Row,  182. 

V.  Turner,  211. 
Frey  v.  Lowden,  3.17. 
Frick  V.  Fiscus,  454. 
Frick  Co.  v.  Taylor,  269. 
Friedland  v,  Myers,  135. 
Friedlander  v.  Ryder,  22. 
Friedley  v.  Hamilton,  187. 
Friend  v.  Supply  Co.,  140. 
Frink  v.  Le  Roy,  238. 

V.  Pond,  439. 
Frisbee  v.  Frisbee,  238. 
Fritz  V.  Tudor,  97. 
Frogmorton  v.  Wliarrey,  297. 
Frohman  v.  Dickiu.son,  3(37. 
Frommer  v.  Roessler,  140. 
Frost,  In  re,  323. 

V.  Bank,  23i>,  235. 

V.  Beekman,  221, 

V.  Cattle  Co.,  431. 

V.  Iron  Co.,  150. 

V.  Koon,  247. 

V.  Rainbow,  118. 

V.  Shaw,  207. 

V.  Society,  412,  454. 
Frothingham.  In  re,  57. 
Frye  v.  President,  etc.,  225. 
Fryer  v.  Rockefeller,  220. 
Fuchs  V.  Fuchs,  489. 


FuUam  v,  Stearns,  13. 
Fuller,  Ex  parte,  475. 

V.  Dauphin,  423. 

V.  Griffith,  224. 

V.  Montague,  345. 

V.  Tabor,  21. 

V.  Trust  Co.,  187. 
Fulmer  v.  Williams,  370. 
Funk  V.  Creswell,  411,  447. 

V.  Eggleston,  39,  3U9,  316. 

V.  Haldeman,  166. 

V.  Voneida,  441. 
Furenes  v.  Michelson,  388. 
Furguson  v.  Bond,  187,  434. 
Furnish  v.  Rogers,  290. 
Fusselman   v.   VVorthingtou,  144,   108; 
Fyflfe  V.  Beers,  116,  121. 


G 

Gadberry  v.  Sheppard,  170. 
Gaffield  v.  Hapgood,  18,  19. 
Gaffney  v.  Hicks.  208. 
Gage  V.  Gage,  2US,  433, 

V,  McDermid,  228. 

V.  Sanborn,  412. 
Gaines  v.  Gaines'  Ex'r,  105. 

V,  Mining  Co.,  64. 

V.  Walker,  246, 
Gainsford  v.  Dunn,  313. 
Galbraith  v.  Gedge,  340. 

V.  Reeves,  194. 
Gale  V.  Nixon,  145. 

V,  Ward,  19. 

V.  Williamson,  427. 
Gale's  Ex'rs  v.  Morris,  191,  192. 
Gal  ford  v.  Gillett,  245. 
Gallagher  v.  Shipley,  17. 
Gallatin  Co.  v.  Beattie,  184. 
Galliers  v.  Moss,  2.15. 
Galloway  v.  Findley,  404. 

V.  Robinson,  484. 
Galpin  v.  Abbott,  220. 
Gait  V.  Galloway,  4<)3,  404. 
Galway  v.  Bryco,  397. 
Gambette  v.  Brock,  117. 
Games  v.  Stiles,  417. 
Gamut  V,  Gregg,  248. 
Gann  v.  Chester,  193. 
Gannon  v.  Hargadon,  371, 
Gano  V,  Aldridge,  421. 


CASES   CITED. 


527 


[The  figures  refer  to  pages.] 


Ganson  v.  Baldwin,  159.. 
Garaly  v.  Dubo>:<',  no. 
Gardiner  v.  Derringr,  64. 
Gardner  v.  Astiir.  273. 

V.  Brown,  2i(i. 

V.  Finley,  14. 

V.  Greene,  91,  92,  ia5. 

V.  Hoopex*,  SO. 

V.  Keteltas,  lo3. 

V.  Lansing,  247. 

V.  Ogden,  270. 

V.  Pace,  41G. 

V.  Webber,  ISl. 
Garfield  v.  Williams,  443. 
Garland  v.  Watson.  '2'>0. 
Garner  v.  Anderson,  491. 
Garnett  v.  City  of  Slater,  360. 
Garnhart  v.  Finney,  152. 
.Garnsey  v.  Rogers,  208. 
Garr  v.  Elble,  488. 
Garrard  v.  Garrard,  108. 
Garrett  v.  Clark,  5G. 

V.  Jones,  122. 

V.  Moss,  380. 

V.  Puckett,  216,  244. 

V.  Wagner,  489. 
Garrison  v.  Hayden,  221. 

V.  Rudd,  355. 
Garson  v.  Green,  193. 
Garth  v.  Baldwin.  297. 
Garwood  v.  Railroad  Co.,  369. 
Gary  v.  Eastabrook,  120. 

V.  Woodham,  400. 
Garza  v.  Investment  Co.,  199. 
Gashe  v.  Young,  267. 
Gaskell  v.  Viquesuey,  200. 
Gass  V.  Wilhite,  277. 
Gassett  v.  Grout,  393. 
Gaston  v.  Wright,  73. 
Gatenby  v.  Morgan,  302. 
Gates  V.  Ege,  237. 

V.  M'Daniel,  380. 

V.  Sutherland.  187. 
Gatewood  v.  Tomlinson,  83. 
Gaunt  V.  Wainman,  87. 
Gause  v.  Hale,  259. 

V.  Wiley,  48. 
Gavit's  Adm'rs  v.  Chambei-s,  5,  423. 
Gay  V.  Hamilton,  189. 
G^yle  V.  Wilson,  207. 
Gebhardt  v.  Reeves,  178. 
Geer  v.  Hamblin,  92. 


Geib  V.  Reynolds,  229. 
Geiger  v.  Bolles,  432. 

V.  Peterson,  210. 
Gelston  v.  Thompson,  200. 
Gelzer  v.  Gelzer,  108. 
Gent  V.  Harrison,  62. 
Genter  v.  Morrison,  439. 
Gentry  v.   NYagstafC,  79. 
George  v   Andrews,  208. 

V.  Bates,  420. 

V.  Kent,  216. 

V.  Putney,  144. 

V.  Wood,  223. 
Gerber  v.  Grabel,  364. 
Gerdlne  v.  Menage,  200,  207. 
Germania  Bldg.  Ass'n  v.  Nelll,  228. 
German  Sav.  &  Loan  Soc.  v.  De  Lash- 
mutt,  38-4. 
Geirard  v.  Cooke,  361. 
Gerrish  v.  Clough,  472. 

V.  Shattuck,  356. 
Gervoyes'  Case,  108. 
Geist  V.  Flock,  438. 

V.  Packwood,  191. 
Getzler  v.   Saroni,  123. 
Gibbs  V.  Estey,  20. 

v.  Johnson,  232. 

V.  Swift,  437. 

V.  WUllams,  371. 
Glbert  v.  Peteler,  170. 
Gibson  v   Crehore,  91,  231,  247. 

V.  Gibson,  107. 

V.  Hough,   209. 

V.  Hutchins,  187. 

V.  Kelly,  6. 

V.  Kirk,  378. 

V.  Leonard,  166. 

V.  McOormick,  205. 

V.  Oliver,  151. 

V.  Railway  Co.,  22. 

V.  Sopher,  385. 
Giddings  v.  Sears,  394. 

V.  Smith,  49. 
Giesen  v.  White,  288. 
Gifford  V.  Corrigan,  203. 

V.  McArthur,  370. 

V.  Yarborough,  471. 
Gilbert  v.  Bulkley,  135. 

V.  Cowan,  124. 

V.  Insurance  Co.,  438. 

V.  Penn,  184. 


628 


CASES   CITEC. 


[The  figures  refer  io  cages.] 


Gilchrist  T.  Brown,  267. 

V.  GouKh,  224. 

V.  McLaughlin,  465. 
Gilfillan  v.  Chatterton,  493. 
Gill  V.  Faimtleroy's  Heirs,  433. 

V.  Lyon,  237. 

V.  Middleton,   139. 

V.  Piuney's  Adm'r,  220. 
Gillespie  v.  Allison,  283. 

V.  Miller,  2SG. 

V.  Reed,  219. 

V.  ^^'orford,  81. 
Glllett  V.  Baleom,  198. 
GUlis  V.  Bailey,  175. 

V.  Brown,  86. 

V.  Chase,  309. 
Gllman  v.  Hamilton,  275. 

V.  Wills,  10,  19G. 
Gilmore  v.  Burch,  78. 

V.  Driseoll,  365. 

V.  Hamilton,  55. 

V.  Severn,  289. 

V.  Wilbur,  343. 
GUpin  V.  HoUingsworth,  337. 
Gllson  V.  Gilson,  186. 
Glrard  v.  Mayor,  etc.,  474. 
Glrardin  v.  Lampe,  227. 
Gladding  v.  Warner,  202. 
Gladwyn  v.  Hitchman,  240. 
Glascock  V.  Robards,  156. 
Glasgow  V.  Baker,  455. 
Glasgow  College  v.  Attorney  General, 

276. 
Gleason  v.  Kinney's  Adm'r,  182,  235. 

V.  Smith,  447. 
Gledden  v.  Bennett,  20. 
Glenn  v.  Clark,  85,  89. 

V.  Glenn,  313. 
GUdden  v.  Hunt,  213,  427. 

V.  Strupler,  386. 
Globe  Ins.  Co.  v.  Lansing,  242. 
Glover  v.  Powell,  6. 
Godall  V.  Mop  ley,  245. 
Godbold  V.  Freestone,  484. 
Goddard  v.  Chase,  19. 

V.  Winchell,  7. 
Gk)dfrey  v.  Humphrey,  38. 
Godman  v.  Simmons,  305. 
Godolphin  v.  Abingdon,  479. 
Godwin  v.  Collins,  192. 

V.  King,  110. 
Goedeke  v.  Baker,  143. 


Gofif  V.  Anderson,  74. 
Golmos  V.  Redmon,  440, 
Going  V.  Emery,  275. 
Gold  V.  Ogden,  208. 
Golden  v.  Hardesty,  433. 
Goldsborough  v.  Martin,  328. 
Goldsbrough  v.  Gable,  160. 
Goldsmith  v.  Goldsmith,  269. 
Goltermann   v.  Schiermeyer,  459,  463. 
Gomber  v.  Hackett,  152. 
Gomez  v.  Gomez,  133. 
Gooch  V.  Atkins,  95. 

V.  Botts,  202. 
Gooch's  Case,  392. 
Goodale  v.  Gawthome,  480. 
Goodall  V.  McLean,  478. 
Goodell  V.  Jackson,  400. 
Goodeuough  v.  Warren,  223. 
Goodenow  v.  Allen,  159. 

V.  Ewer,  248. 
Goodnow  V.  Lumber  Co.,  383. 
Groodrlch  v.  Burbank,  355,  373. 

V.  Jones,  14,  18. 
Goodright   v.  Oordwent,  162. 

V.  Davids,  175. 

v.  Dunham,  287,  290. 

v.  Morningstar,  42. 

V.  Richardson,  134. 
Goodrum  v.  Goodrum,  98,  109. 
Goods  of  Merritt,  In  re,  317. 
Goodspeed  v.  Fuller,  427. 
Goodtitle  v.  Billiugton,  292. 

V.  Otway,  476. 

V.  Way,  131. 
Goodwin  v.  Clark,  326. 

V.  Folsom,  454. 

V.  Gilbert,  378,  432. 

V.  Goodwin,  87. 

V.  Holbrook,  441. 

V.  Richardson,  338. 

V.  Thompson,  5. 
Gordon  v.  Bank.  193. 

V.  George,  136. 

V.  Smith,  234. 
Gore  V.  Gore,  299. 
Goree  v.  Wadsworth,  431. 
Gorham  v.  Electric  Co.,  426. 
Goring's  Ex'rs  v.  Shreve,  20^ 
Goss  V   Fro  man,  103. 
Gosselin  v.  Smith,  342,  4681 
Gossett  v.  Drydale,  9,  143. 
Gossln  V.  Brown,  204. 


CASBS  CITED. 


629 


[The  figures  refer  to  pages.] 


Gott  V.  Cook,  255. 
Gouhenant  v.  Cockrell,  121. 
Gould  V.  Lamb,  261,  262. 
V.  Marsh,  211. 
V.  Orphan  Asylum,  24. 
V.  School  Dist.,  147. 
V.  Thompson,  156. 
Gourley  v.  Woodbury,  288. 
Gove  V.  Gove,  325. 
Govin  V.  De  Miranda,  260. 
Gowan  v.  Foimtain,  113. 
Gowen  v.  Exchange  Co.,  166. 
Gower  v.  Howe,  245. 
V.  Quinlan,  340. 
V.  Winchester,  247. 
Grabenhorst  v.  Nicodemus,  141. 
Grabfelder  v.  Gazetti,  132. 
Grace,  Ex  parte,  270. 
Graff  V.  Middleton,  223. 
Graff's  Estate,  In  re,  203. 
Graham  v.  Anderson,  141. 
V.  Burch,  477. 
V.  Dempsey,  162. 
V.  Dunigan,  102. 
V.  Graham,  107. 
V.  Houghtalin,  289. 
V.  King,  315. 
V.  Linden,  230. 
V.  Van  Wyck,  106. 
Graham's  Heirs  v.  Graham,  94. 
Grainsford  v.  Dunn,  313. 
Grandin  v.  Hernandez,  429. 
Grand   Island   Sav.   &   Loan   Ass'n  v. 

Moore,  207,  241. 
Grand  Junction  Canal  Co.  v.  Shugar, 

371. 
Grandona  v.  Lovdal,  4. 
Granger  v.  Brown,  162. 

V.  Roll,    207. 
Grannis  v.  Clark,  138. 
Grant  V.  Bennett,  218. 
V.  Chase,  351. 
V.  Duane,  234. 
V.  Hill,  449. 
T.  Lynam,  316. 
V.  Sutton,  84. 
Grape    Creek    Coal    Co.    v.    Farmers' 

Loan  &  Trust  Co.,  182,  185. 
Grapengether  v.  Fejervary,  210. 
Graves  v.  Berdan.  153. 
V.  Colwell,  455. 
v.  Dolphin,  397. 

REAL  PROP.— 84 


Graves  v.  Fligor,  105. 

V.  Graves'  Ex'r,  219,  475. 

V.  Weld.  8. 
Gray  v.  Blanchard,  170,  174. 

V.  Cuthbertson,  187. 

v.  Johnson,  143. 

V.  McCune,  107. 

V.  Mathis,  71. 

V.  Packer,  57. 

V.  Robmson,  154,  155. 

V.  Shaw,  249. 

V.  Waldron,  210. 

V.  Worst,  143. 
Graydon  s  Ex'rs  v.  Graydon,  173. 
Great  Falls  Co.  v.  Worster,  197. 
Greatrex  v.  Hayward,  372. 
Green  v.  Armstrong,  8. 

V.  Arnold,  346. 

V.  Biddle,  21. 

V.  Bridges,  176. 

V.  Claiborne,  319. 

V.  Cross,  238. 

V.  Drinker,  220. 

V.  Garrhigton,  222. 

V.  Goff,  357. 

V.  Green,  383.  48L 

V.  Hall,  207,  241. 

V.  Hewitt,  292. 

V.  Liter,  75,  76. 

V.  Marks,  123. 

V.  Pettingill.  243. 

V.  Phillips,  15. 

V.  Putnam,  91. 

V.  Root,  125. 

V.  Rumph.  259. 

V.  Sherrod,  187. 

V.  Slayter,  216. 

V.  Spicer,  397. 

V.  Wilding,  383. 
Greenbaum  v.  Austrian,  106. 
Green  Bay  &  M.  Canal  Co.  v.  Hewitt. 
412. 
v.  Kaukauna    Water    Power    Oo., 
353,  369. 
Greenby  v.  Wilcooks.  448. 
Greene  v.  Reynolds,  88. 
Greenleaf  v.  Grounder,  489. 
Greenley  v.  Wilcocks,  443. 
Greeno  v.  Munson,  144. 
Greensburg  Fuel  Co.  v.  Irwin  Nat  Qa« 

Co..  228. 
Green's  Estate,  In  re,  38. 


630 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Greenwell  v.  Heritage,  204. 
Greenwood  v.  Maddox,  113,  116,  126. 

V.  Tyler,  419. 

V.  Verdon,  326. 
Greenwood's  Appeal,  264. 
Greer  v.  Haugabook,  379. 

V.  Turner,  201. 
Gregg  V.  Bostwick,  118,  119. 

V.  Boyd,   9,   143. 

V.  Patterson,  336. 

V.  Railway  Co.,  21. 
Gregory  v.  Gates,  12L 

V.  Thomas,  229. 

V.  Wilson,  151. 
Gress  Lumber  Co.  v.  Goody,  420. 
Grey  v.  McCune,  84. 

T.  Mannock,  54. 
Gridley  v.  Bingham,  393. 

V.  Watson,  393. 
Griffin  v.  Bixby,  4. 

V.  Groutleu,  126. 

V.  Griffin,  192. 

V,  ]Marine  Co.,  249. 

T.  Reece,  104. 

V.  Sheffield,  104. 
Griffith  V.  Schweuderman,  13L 
Gi-iggs  V.  Smith,  H'k 
Grim,  Appeal  of,  432. 
Grimes  v.  Kimball,  230. 

V.  Ra gland,  4t>2. 

V.  Wilson,  94. 
Grimes'  Ei'rs  v.  Harmon,  277. 
Grimshaw  v.  Belcher,  167. 
Griswold  v.  Huffaker,  118. 

T.  Johnson,  335. 

V.  Little,  464. 
Groesbeck  v.  Seeley,  438. 
GroflP  V.  Rohrer,  266. 
Groft  V.  Weakland,  466. 
Grogan  v.  Garrison,  108. 
Grommes  v.  Trust  Co.,  149. 
Groneweg  v.  Beck.  122. 
Groome  v.  Almstead,  156. 

V.  Ogden  City  Corp.,   138. 
Gropengether  v.  Fejorvary,  192. 
Grosholz  V.  Newman,  119,  122. 
Grosvenor  v.  Bowen,  322. 
Grouch  V.  Lumber  Co.,  270. 
Groustra  v.  Bourges,  158. 
Grout  V.  Townseud,  77,  81. 
Grover  v.  Thatcher,  231. 

V.  Wakeman,  394. 


Grube  v.  Wells,  4t!4,  465. 
Gruenewald  v.  Scliaales,  161. 
Gruhn  v.  Richardson,  126. 
Grussy  v.  Schneider,  230. 
Grute  V.  Locroft,  71. 
Grymes  v.  Bowereu,  18. 
Gudgen  v.  Besset,  434. 
Guerin  v.  Moore,  9S. 
Guertin  v.  Mombleau,  452,  455. 
Guest  V.  Farley,  256. 

V.  Reynolds,  364. 
Guffy  V.  Hukill,  175. 
Guild  V.  Richards,  174. 
Guion  V.  Anderson,  73,  74. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Smith,  142. 
Gully  V.  Ray,  89. 
Gumbel  v.  Boyer,  211. 
Gumbert's  Appeal,  267. 
Gunn  V.  Barry,  125. 
Gunning  v.  Cusack,  356. 
Gunnison  v.  Twitchel,  84. 
Gunson  v.  Healy,  360. 
Gunyon's  Estate,  In  re,  109. 
Guthrie  v.  Gardner,  268. 

V.  Jones,  16. 
Gutman  v.  Buckler,  315. 
Gwaltney  v.  Land  Co.,  370. 
Gwynn  v.  Thomas,  450. 
Gwynne  v.  City  of  Cincinnati,  105. 


H 

Haaven  v.  Hoaas,  268. 
Hacker's  Appeal,  316. 
Hackett  v.  Marmet  Co.,  144. 

V.  Reynolds,  192. 
Hack  with  v.  Damron,  216. 
Hadley  v.  Stewart,  202. 
Haflick  V.  Stober,  20,  22. 
Hagan  v.  Vamey,  61. 
Hagar  v.  Brainerd,  184. 

V.  Wiswall,  346. 
Hageman  v.  Hagemau,  296. 
Haggerty  v.  Hocken berry,  283. 
Hagthorp  v.  Hook's  Adm'rs,  201. 
Haight  V.  Pearson,  209. 
Haile  v.  Nichols,  206. 
Haines  v.  ElUs,  82. 
Halt  V.  Houle,  124. 
Haldeman  v.  Bruckhart,  371. 


CASES  CITED. 


531 


[The  figures  refer  to  pages.] 


Hale  V.  Hale,  317. 

V.  James,  OG,  'J8. 

V.  Pew,  327. 

V.  Plummer,  93. 
Hales  V.  James,  96. 

V.  Petit,  49. 
Haley  v.  Colcord,  361. 
Hall  V.  Bray,  447. 

V.  Chaffee,  305. 

V.  Grouse,  225. 

V.  Dean,  445. 

V.  Eaton,  424. 

V.  Fields,  114,  115. 

T.  Hall,  72,  491. 

V.  Harris,  436. 

V.  Lawrence,  375,  376. 

V.  Nottingham,  354. 

V.  Piddock,  345. 

V.  Priest,  301. 

V.  Savage,  107. 

V.  Smith,  110. 

V.  Stevens,  404, 

V.  Thayer,  51. 

V.  Vandegrift,  48. 

V.  Wallace,  156. 
Hallett  V.  Hallett,  87. 

V.  Thompson,  41. 

V.  Wylie.  140. 
Hall's  Lessee  v.  Vandegrift,  459. 
Hallum  V.  Silliman,  317. 
Halsey  v.  McCormick,  422,  471. 

V.  Tate,  274,  275. 
Halstead  v.  Lake  Co.,  388, 
Hambrick  v.  Russell,  245. 

V.  Security  Co.,  2.-)0. 
Hamilton  v.  Butkwalter,  109. 

V.  Cutts,  447. 

V.  Denny,  341. 

V.  Downer,  260. 

V.  Elliott,  172,  174. 

V,  Gilbert,  193. 

V,  Pittock,  143. 

V.  Ritchie,  475. 

V.  Wentworth,  298. 

V.  White,  356. 

V,  Wilson,  443. 

V.  Wright,  138. 
Hamlin  v.  Hamlin,  89, 
Hammerton  v.  Stead,  409. 
Hammond  v,  Peunock,  265. 

V.  Peyton,  194, 
Hampton  v.  Holman,  327. 


Hanchett  v.  Whitney,  162. 
Hancock  v.  Beverly's  Heirs,  224. 
V.  Carlton,  175. 

V.  Fleming,  232. 
Handly's  Lessee  v.  Anthony,  423. 
Hanes  v.  Denby,  204. 
Hanford  v.  Blessing,  190. 
Hanks  v.  Enloe,  334, 
Hanlon  v,  Doherty,  232. 
Hannah  v.  Collins,  456, 

V.  Henderson,  447. 

V.  Swarner,  434. 
Hannibal  &  St.  J.  R.  Co.  v.  Green,  421. 
Hanrahan  v.  O'Reilly,  450, 
Hanrick  v.  Patrick,  454. 
Hansard  v.  Hardy,  238. 
Hansen  v.  Meyer,  136,  137. 
Hanson  v.  Cochran,  438. 
Hapgood  V.  Blood,  196, 

V.  Houghton,  170. 
Haralson  v.  Bridges,  71. 
Harder  v,  Haider,  145. 
Hardin  v.  Jordan,  423. 

V.  Lawrence,  98. 

V.  Osborne,  438. 
Harding  v.  Allen,  223. 

V.  Glyn,  313. 

V,  Handy,  384. 

V.  Manufacturing  Co.,  240. 
Hare  v.  Stegall,  145. 
Hargreaves,  In  re,  323. 

V.  Menken,  241. 
Harkness  v.  Sears,  17. 
Harland  v.  Binks,  396. 
Harlan's  Heirs  v.  Seaton's  Heirs,  224. 
Harlow  v,  Thomas,  448. 
Harmon  v.  Harmon,  392. 

V.  Smith,  317, 
Harper  v.  Edwards,  181, 

V.  Ely,  200,  202,  250. 
Harper's  Appeal,  201. 
Harral  v.  Leverty,  216. 
Harries'  Trust,  In  re,  317. 
Harriman  v.  Gray,  107. 

V.  Light  Co.,  ISO,  185. 
Harris  v.  Carson,  9. 

V.  Curran,  493. 

V,  Frink,  8,  9,  157. 

V,  Gosliu,  143. 

V.  Jex,  230. 

V.  Knapp,  310. 

V,  McElroy,  271. 


532 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Harris  v.  Rlchey,  464. 
V.  Kydinjr,  30(5. 
V.  SCO  vol.  10,  14. 
V.  Sumner,  3'J4. 
Harrison  v.  Battle,  307. 
V.  Boring.  349. 
V.  Boyd,  iH. 
V.  Eldridge,  91. 
V.  Foote,  171. 
V.  Middleton,  158. 
V.  Moore,  07. 
V.  Ricks,  154. 
V.  Simons,  416. 
V.  Sterry,  41. 
V.  Yerby,  210. 
Hart  V.  Connor,  360. 
V.  Dean,   32. 
V.  Leete,  72. 
V.  McCk)llum,  IIL 
V.  McGrew,  81. 
V.  Randolph,  111. 
Harter  v.  Twohlg,  237. 
Hartford  Fire  Ins.  Go.  v.  Walsh,  198. 
Hartley  v.  Harrison,  206,  207. 

V.  Tatbam,  207. 
Hartley's  Appeal,  189. 
Hartman  v.  Fick,  357. 
Harton  v.  Harton,  256. 
Hartshorn  v.  Hubbard,  197. 
Hartshorne  v.  Hartshome,  90. 
Haxtwell  V.  Camman,  7. 
V.  Kelly,  23. 
V.  McDonald,  120. 
Harvey  v.  Brisbin,  77,  317. 
V.  Walters,  358,  372. 
Y.  Wlckham,  75. 
Hanill  v.  Holloway,  93. 
Haskell  v.  Bissell,  220. 

V.  Scott,  193. 
Hasker  v.  Sutton,  285. 
Hasklns  v.  Tate,  58. 
Hastings  v.  Clifford,  109. 
V.  Dickinson,  107. 
V.  Mace,  111. 
V.  Stevens,  91. 
Hasty  V.  Wheeler,  65. 
Hatch  V.  Barr,  430. 

V.  Ferguson,  455,  481. 
V.  Haskins,  221. 
V.  Hatch,  66,  429. 
Hatcher  v.  Curtis,  321. 


Hatfield  v.  Malcom,  246. 

V.  Sneden,  77,  79. 
Hathaway  v.  Insurance  Co.,  21. 

V.  Payne,  434. 
Hathon  v.  Lyon,  74. 
Haitersley  v.  Bissett,  476. 
Hauenstein  v.  Lynham,  388. 
Haven  v.  Adams,  218. 
V.  Foster,  205. 
V.  Mehlgarten,  342. 
Havens  v.  Electric  Light  Co.,  19. 

V.  Land  Co.,  305. 
Havei-stick  v.  Sipe,  364. 
Haward  v.  Peavey,  288. 
Hawes  v.  Wyatt,  477. 
Hawkins  v.  Skeggs,  9. 

V.  Skeggs'  Adm'r,  62. 
Hawksland  v.  Gatchel,  430. 
Hawley  v.  Bradford,  90. 
V.  Cramer,  270. 
V.  James,  267. 
V.  Northampton,  286,  302, 
Haworth  v.  Taylor,  217,  221. 
Hay  V.  Mayer,  77. 
Hayden  v.  Merrill,  341. 
V.  Paterson,  843. 
V.  Smith,  229. 
V.  Stoughton,  171. 
Haydon  v.  Haydon,  489. 
Hayes'  Appeal,  345. 
Hayes  v.  Dl  Vito,  361, 
V.  Foorde,  297. 
v.  Kershow,  260,  264. 
V.  Mining  Co.,  16,  19. 
V.  Railway  Co.,  171. 
V.  Waldron,  369. 
Hayner  v.  Smith,  138. 
Haynes  v.  Boardman,  467. 
V.  Investment  Co.,  151. 
v.  King,  363. 
v.  Powers,  101. 
V.  Schaefer,  115. 
Hays  v.  Cas.sell,  490. 
Hayward  v.  Kiuney,  59. 
Haywood  v.  Building  Soc.,  851. 
V.  Fulmer,  166. 
V.  Rogers,  154. 
Hazard  v.  Draper,  198. 

V.  Robinson,  358. 
Hazeltlne  v.  Moore,  193. 
Heald  v.  Heald,  324. 


CASES  CITED. 


638 


[The  figures  refer  to  pages.] 


Healey  r.  Alston,  273. 

V.  Worth,  219. 
Heaney  v.  Heeney,  166. 
Hearle  v.  Greenbaak,  78. 
Heasman  v.  Pearse,  324. 
Heath  v.  Bishop,  397. 

V.  Heath,  38. 

V.  White,  74,  75. 
Heaton  v.  Prather.  214,  221,  222. 
Hebron  Gravel   Road   Co.   v.  Harvey, 

871. 
Hecht  V.  Herrwagen,  153. 
Heckman  v.  S-wett,  5,  471. 
Hedges  v.  Riker,  319. 
Heelis  v.  Blain,  253. 
Heennance  v.  Vernoy,  142. 
Heffner  v.  Lewis,  11,  19. 
Heibert  v.  Wren,  87. 
Heldel  v.  Benedict,  118. 
Heinouer  v.  Jones,  151. 
Helntze  v.  Bentley,  139. 
Heisen  v.  Heisen.  95,  99,  110. 
Heister  v.  Madeira,  187. 
Heister's  Lessee  v.  Fortner,  219. 
Heitkamp  v.  Granite  Co.,  195. 
Helbreg  v.  Schumann,  189. 
Hele  V.  Bond,  321. 
Hellwlg  V.  Bachman,  24. 
Helm  V.  Boyd,  188. 

T.  Gilroy,  21. 

V.  Helm,  115. 

V.  Webster,  178. 
Helme  v,  Strater,  110. 
Helmer  v.  Krolick,  211. 
Helms  V.  Chadbourne,  214. 
Hemenway  v.  Cutler,  21. 
Hemphill  v.  Ross,  184. 
Hempstead  v.  Easton,  455. 
Henagan  v,  Harllee,  90. 
Hender  v.  Roye,  109. 
Henderson  v.  Baltimore,  428. 

V.  Eason,  341. 

V.  Ellerman,  491. 

V.  Henderson,  297. 

V.  Hunter,  177,  178. 

V.  Truitt,  236. 

V.  Vaulx,  322. 
Hendrix  v.  McBeth,  88. 
Hendrixson  r.  Cardwell,  0. 
Hendy  v.  Dinkerhoff,  12. 
Henegan  v.  Harllee,  90. 
Henkel  v.  Bohnke,  204. 


Henley  v.  Hotaling,  190. 
Hennessy  v.  Patterson,  283. 
Henning  v.  Burnet,  300. 
Henry  v.  Simpson,  317. 

V.  Tupper,  175. 
Henry's  Case,  20. 
Henschel  v.  Mamero,  230. 
Hensel  v.  Association,  126. 
Hensey  v.  Hensey's  Adm'r,  125. 
Henshaw  v.  Bissell,  452. 

V.  Wells,  154. 
Herbemont's  Ex'rs  v.  Thomas,  83S. 
Herber  v.  Thompson,  228. 
Herbert  v.  Association,  204. 

V.  Scofield,  192. 

V,  Webster,  326. 
Herdman  v.  Cooper,  117. 
Herff  V.  Griggs,  200. 
Herman  v.  Roberts,  357. 
Heme  v.  Bembow,  63. 
Herr  v.  Herr,  95. 
Herrell  v.  Sizeland,  159. 
Herrick  v.  Graves,  119,  121. 

V.  Malln,  429. 
Hersey  v.  Chapin,  158. 

V.  Turbett,  218. 
Hertell  v.  Van  Buren,  314. 
Hervey  y.  Hervey,  108. 
Hfcslop  V.  Heslop,  103. 
Hesnard  v.  Plunkett,  113,  127. 
Hester  v.  Hunnicutt,  449. 
Heth  V.  Cocke,  89,  91. 
Hethrington  v.  Graham,  103. 
Hetzel  V.  Barber,  322. 
Hetzell  V.  Barber,  231. 
Heuisler  v.  Nickum,  220, 
Hewitt  v.  Rankin,  116,  117. 

V.  Templeton,  123. 
Hews  V.  Kenney,  267. 
Hey  V.  Moorhouse,  145. 
Heyward  v.  Judd,  248. 

V.  Mining  Co.,  6. 
Hiatt  V.  Parker,  181. 
Hibberd  v.  Smith,  435. 
Hicklln  V.  Marco,  201. 
Hickman  v.  Irvine's  Heirs,  87. 

V.  Kempner,  493. 

V.  Stewart,  450. 
mckox  V.  Railroad  Co.,  357. 
Hicks  V.  Chapman,  131. 

v.  Cochran,  337. 

V.  Smith,  480. 


534 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Hlester  v.  Green,  192. 
HIgble  V.  Westlake,  99. 
Higglnbottom  v.  Short,  346. 
Hlggins  V.  Bordages,  125,  489. 
V.  Breen,  84. 
V.  Higgins,  339. 
V.  Kusterer,  7. 
V.  West,  248. 
Highstone  v.  Burdette,  463. 
Highways  Berridge  v.  Ward,  422. 
Ulginbotham  v.  Holme,  396. 

V.  Stoddard,  424. 
Hihn  V.  Peck,  342. 
Hilburn  v.  Harris,  452. 
Hlldreth  v.  Conan,  158. 

V.  Jones,  91. 
Hiles  V.  Fisher,  338. 
Hill  V.  Bacon,  288,  445. 
V.  Barclay,  176. 
V.  Crosby,  353. 
V.  De  Rochemont,  17. 
V.  Epley,  451. 
V.  Gibbs,  344. 
v.  Gregory,  93. 
V.  Hill,  15,  46,  48. 
V.  Lord,  373. 
V.  McNichol.  433. 
V.  Meeker,  224. 
V.  Murray,  214. 
V.  Payson,  233. 
V.  Railroad  Co.,  372. 
V.  Robertson,  184. 
V.  Roderick,  304. 
V.  Sewald,  12. 
V.  Townley,  247. 
▼.  Tupper,  355. 
V.  Wentworth,  12. 
Hillen  v.  Iselin,  329. 
Hilliard  v.  Scoville,  345. 
Hills  V.  Bishop,  4. 
V.  Day,  346. 
V.  Miller,  350,  355. 
V.  Simonds,  325,  328. 
Hill's  Adm'rs  v.  Mitchell,  99. 
Hilton  V.  Bank,  241. 
Iliuchliff  V.  Hinman,  483. 
Hlnchman  v.  Stiles,  91. 
Hinde's  Lessee  v.  Longworth,  393. 
Hines  v.  Ament,  12. 
Hinkley  v.  Black,  21. 

V.  Wheelwright,  206. 
Hinsdale  v.  Humphrey,  378. 


Hirst's  Estate,  In  re,  24. 
Histc  V.  Buckley,  21. 
Hitch  V.  Patten,  38. 
Hitchcock  V.  Bank,  24a 
Hitner  v.  Ege,  79. 
Hitz  V.  Bank,  80,  83. 
Hoban  v.  Cable,  420,  464. 
Hobbs  V.  Harvey,  91. 
V.  Trust  Co.,  185. 
Hochenauer  v.  Hilderbrant,  185. 
Hocker  v.  Gentry,  477. 
Hocker's  Appeal,  205. 
Hodgdon  v.  Shannon,  181. 
Hodge  V.  Amerman,  217. 
Hodgen  v.  Gutteiy,  237. 
Hodges  V.  Spicer,  57. 
V.  Williams,  471. 
Hodgkins  v.  Farrington,  16& 
Hodgkinson,  Petitioner,  845. 

V.  Wood,  476. 
Hodgson  V.  Halford,  172. 
Hodson  V.  Treat,  206. 
Hoeveler  v.  Fleming,  141. 
Hoffar  V.  Dement,  337. 
Hoffman  v.  Armstrong,  4. 
V.  Clark,  164. 
V.  Kuhn,  367. 
V.  Stigers,  337,  338. 
Hoff' s  Appeal,  204,  205. 
Hol'man  v.  Demple,  124. 
Hogan  V.  Curtin,  173. 
V.  Jaques,  266. 
V.  Strayhorn,  266. 
Hoge  V.  Hoge,  270. 
Hogvjnson  v.  Railway  Co.,  372. 
Hogg  V.  Water  Co.,  369. 
Hogsett  V.  Ellis,  164. 
Hoile  V.  Bailey,  188. 
Hoitt  V.  Webb,  119,  122. 
Holabird  v.  Burr,  201. 
Holbird  V.  Anderson,  394. 
Holbrook  v.  Chamberlain,  16. 
V.  Dickenson,  224. 
T.  Finney,  85,  89. 
y.  Tirrell,  434. 
Holden  v.  Boggess,  104. 
V.  PInney,  120. 
V.  Wells,  48,  77. 
Holder  v.  Coates,  4. 
Hole  V.  Escott,  321. 
Holford  V.  Hatch,  137. 
Holladay  v.  Power  Co.,  163. 


CASES   CITED. 


535 


[The  figures  refer  to  pages.] 


Holland  v.  Aleock,  276» 

V.  Bank,  249. 

V.  Hodgson,  21. 
Holley  V.  Glover,  93, 
Holliman  v.  Smith,  117. 
Hollingsworth  &  Vose  Co.  v.  Foxbor- 

ough  Water-Supply  Dist.,  871- 
HoUister  v.  Shaw,  31G. 

V.  Young,  464. 
Hollman  v.  Tigges,  317. 
HoUoman  v.  Holloman,  96. 
'Holly    Manuf'g    Co.    v.    New    Chester 

Water  Co.,  12. 
Holman  v.  Bailey,  228. 

V.  Gill,  345. 
Holmes  v.  Book,  90. 

V.  Buckley,  351. 

V.  Coghill,  320. 

V.  Conway,  351. 

v.  Godson,  395. 

V.  Goring,  360. 

V.  Penney,  396. 

V.  Prescott,  293. 

V.  Railway  Co.,  241. 

V.  Seely,  359,  360. 

V.  Tremper,  17. 
Holton  V.  Guinn,  93. 

V.  Kemp,  429. 
Holtzapffel  v.  Baker,  140. 
Homestead  Ass'n  v.  Enslow,  124. 
Honore's  Ex'r  v.  Bakewell,  194. 
Honywood  v.  Honywood,  66. 
Hood  V.  Fahnestock,  217. 

V.  Haden,  312,  315. 

V.  Oglander,  395. 
Hooker  v.  Hooker,  79. 
Hooks  V.  Forst,  152,  153. 
Hool  V.  Bell,  377. 
Hooper  v.  Cummings,  170,  17C5w 

T.  Henry,  232. 
Hooton  V.  Holt,  140,  165. 
Hoots  V.  Graham,  95. 
Hoover  v.  Buck,  489. 
Hopkins  V.  Garrard,  217. 

V.  Glunt,  262. 

V.  Grimes,  474. 

V.  Hopkins,  255,  285. 

V.  Railroad  Co.,  379. 

V.  Smith,  172, 

V.  Turnpike  Co.,  263. 
Hopp  V.  Hopp,  434. 
Hoppe  V.  Hoppe,  114,  115, 


Hopper  V.  Calhoim,  207. 

V.  Hopper,  100. 
Hoppock  V.  Johnson,  215, 
Horbach  v.  HiU,  190. 
Hord  V.  James,  248. 
Horn  V.  Bennett,  210. 
v.  Keteltas,  188. 
V.  Tufts,  116. 
Horubeck  v.  Westbrook,  418. 
Home  V.  Lyeth,  296. 
Horner  v.  Leeds,  134,  144. 
V.  Renter,  460,  465. 
V.  Watson,  871. 
Horseley  v.  Moss,  155. 
Horton  v.  Earle,  477. 
Horwitz  V.  Norris,  313. 
Hosford  V.  Ballard,  377. 

V.  Johnson,  236. 
Hoske  V.  Gentzlinger,  162. 
Hoskins  v.  Rhodes,  155. 
Hosll  V.  Yokel,  159. 
Hoss  V.  Hoss,  173. 
Houck  V.  Yates,  5, 
Houell  V.  Bames,  315. 
Hough  V,  Brown,  153, 
Houghton  V,  Hapgood,  78. 
House  V,  Fowle,  104,  107. 

V,  Jackson,  92. 
Houston  V.  Newsome,  122. 

V.  Smith,  84. 
Houston  &  G.   N.   R,  Co.  t.   Winter, 

120. 
Hovey  v.  Nellis,  67, 
How  V,  Bank,  120, 
Howard  v,  Merriam,  l,j6,  157. 

T,  Peace  Soc,  277. 

v.  Priest,  340, 

V.  Shaw,  156,  220. 

V,  Thornton,  315, 
Howard  Ins.  Co.  v.  Halsey.  210. 
Howard's  Estate,  In  re,  171. 
Howe,  Ex  parte,  191. 

V.  Andrews,  6. 

T.  W^arren,  34. 
Howell  V.  Hale,  452. 

V,  Howell,  267. 

V.  Jones,  117. 

V.  MerrUl,  424. 

V.  Mills,  345, 

V.  Rex,  361, 

T.  Richards,  442. 

V.  Schenck,  9. 

y.  Tyler,  312. 


536 


Cases  cited. 


[The  figures  refer  to  pages.] 


Howlett  T.  Dllts,  84,  lOe. 
Howze  v.  Barber,  38. 
Hoiie  V.  Carr,  339. 
Hoyle  V.  Hallway  Co.,  15. 
Hoyt  V.  Bradley,  181. 

V.  Howe,  123. 

V    Hoyt,  117. 

V.  Swar,  386. 
Hubbard  v.  BeiTy,  143. 

V.  Elmer,  319. 

V.  Hubbard,  174,  175. 

V.  Johnson,  493. 

V.  Kiddo,  459,  400. 

V.  Shaw,  143,  202. 

V.  Turner,  226. 
Hubbell  V.  Canady,  123. 

V.  Medbury,  270,  274. 

V.  Moulson,  200. 
Hucklns  V.  Straw,  196. 
Hudson  V.  Sieere,  93. 
Huebsclimami  v.  McHenry,  21,  23. 
Huey's  Appeal,  123. 
Huff  V.  Farwell,  237. 

V.  Land  Co.,  447. 

V.  McCauley,  349,  350,  407. 
Huffell  V.  Armltstead,  163. 
Huffmaster  v.  Ogden,  85. 
Hughes  V.  Allen,  93. 

V.  Edwards,  186,  241. 

V.  Graves,  456. 

V.  Johnson,  202. 

T.  Nicklas,  296. 

T.  Robotham,  281, 

V.  Sayer,  326. 

V.  Sheaff,  190. 

V.  Windpfennig,  134. 
Hughes'  Minors'  Appeal,  181. 
Hughs  V.  Pickering,  459,  466,  467. 
Hulbert  T.  Clark,  240. 
Hulburt  V.  Emerson,  44. 
Hulett  V.  Insurance  Co.,  224. 

V.  Soullard,   191. 

V.  Whipple,  193. 
Hulick  V.  Scovil,  435. 
Hull  &  S.  Ry.,  In  re,  471. 
Hulme  V.  Montgomery,  485. 
Huls  V.  Buntin,  461. 
Humberston  v.  Humberston,  327. 
Humble  v.  Glover,  378. 
Humes  v.  Bernstein,  462. 
Hummelman  v.  Mounts,  417. 
Humphrey  v.  Phinney,  97. 


Hatnpbreys  v.  Blasingame,  363» 

V.  McKissock,  426. 
Humphries  v.  Brogden,  366. 
Hunkins  v.  Huukius,  10(i. 
Hunnewell  v.  Bangs,  153. 
Uunuicut  V.  Peyton,  458,  465. 
Hunt  V.  Amidou,  135. 

V.  Blackburu,  337. 

V.  Conistock,  140. 

V.  Danforth,  137. 

V.  Hall,  304. 

V.  Hunt,  195,  244,  273. 

V.  Iron  Co.,  12. 

V.  Johnson,  219. 

V.  Mortgage  Security  Co.,  21(X 

V.  Morton,  159. 

V.  MuUanphy,  13. 

V.  Nolen,  246. 

V.  Peake,  365. 

V.  Rousmanier's  Adm'rs,  311. 

V.  StUes,    242. 

V.  Thompson,  147. 

V.  Waterman,  193. 

V.  Watkins,  9,  60,  61. 

V.  Wright,  327,  344. 
Hunter  v.  Anderson,  24. 

V.  Ayres,  469. 

v.  Bryan,  57. 

V.  Frost,  161. 

V.  Le  Conte,  145. 

V.  Osterhoudt,    152. 

V.  Stembridge,  261. 

V.  Trustees  of  Sandy  Hill,  363. 

V.  Whitworth,  74. 
Hunters  v.  Waite,  393. 
Hunter's  Adm'r  v.  I^aw.  115. 
Huntington  v.  Allen,  462. 

V.  Asher,  350,  374. 
Huntley  v.  Hole,  451. 

V.   Russell,  62,  65,  66. 
Hunton  v.  Nichols,  466. 
Hupp  v.  Hupp,  34. 
Hurd  V.  Curtis,  137,  418. 

v.  Cushiug,  55. 

V.  Darling,   154. 

V.  Grant,  100. 

V.  Shelton.  171, 
Hurdman  v.  Railway  Co.,  372. 
Hurlburt  v.  Firth,  358. 
Hurley  v.  Estes,  184. 

V.  Hamilton,  346. 


CASBS  CITSD. 


637 


[The  figures  refer  to  pages.1 


Hurst  V.  Hurst,  396. 

V.  Rodney,  135. 

V.  Winchelsea,  475. 
Hurto  V.  Grant,  174. 
Huston  V.  Clark,  15. 

V.  Seeley,  95. 
Hutchings  v.  Bank,  150. 

V.  Huggins,  122. 
Hutchings'  Adm'r  v.  Bank,  78. 
Hutcbms  V.  Dixon,  80. 

V.  Heywood,  274. 

V.  Masterson,  12,  20. 
Hutchinson  v.  Swartsweller,  229. 
Hutchison  v.  Rust,  438. 
Huth  V.  Dock  Co.,  383. 
Hutton  V.  Bankard,  316. 
Hutzler  v.  Phillips.  192. 
Huxley  v.  Rice,  2G5. 
Huyser  v.  Chase,  1G2. 
Huzzard  v.  Trego.  4i>4. 
Huzzey  v.  Field.  380. 
Hyatt  V.  Cochran,  221. 

V,  Griffiths,  IGO. 
Hyde  v.  Baldwin,  453. 

V.  HeUer,  476. 
Hylton  V.  Brown.  21. 
Hyman  v.  Devereux,  24. 

V.  Kelly,  184. 

V.  Read,  402. 
Hymes  v.  Esty,  448. 


Ibbs  V.  Richardson,  164. 

Iglehart  v.  Bierce,  245. 

Illinois  Cent.  R.  Co.  v.  Illhiois,  5. 
V.  Indiana  &  I.  C.  R.  Co.,  418. 
V.  McCullough,  217,  436. 

Illinois  Fire  Ins.  Co.  v.  Stanton,  197. 

Imlay  t.  Huntington,  256. 

Independent  Dist  of  Oak  Dale  v. 
Fagen,  457. 

Indianapolis  Manufacturing  &  Car- 
penters' Union  v.  Cleveland  0.  C.  & 
I.  Ry.  Co.,  147. 

Indianapolis  Water  Co.  v.  Nutte,  441. 

Ing  V.  Brown,  408. 

Ingalls  V.  Atwood,  188. 

Ingals  V.  Plamondon,  367. 

Ingersoll  v.  Sergeant,  31,  376,  377. 

IngersoU's  Estate,  In  re,  24. 


Inglis  V.  Trustees,  276. 

Ingraham  v.  Meade,  313. 
V.  Wilkinson,  5,  471, 

Ingram  v.  Little,  328. 
V.  Morris,  90. 

Inhabitants  of  Deerfield  t.  Arms,  471. 

Inhabitants   of   First    Parish   In    Sud- 
bury V.  Jones,  21. 

Inhabitants    of    Plymouth  v.  Carver, 
137. 

Inhabitants  of  Rehoboth  v.  Hunt,  34-1. 

Inhabitants  of  School  Dist.  No.  4  v. 
Benson,  470. 

Inhabitants  of  West  Roxbury  v.  Stod- 
dard, 6. 

Inhabitants  of  Windham  v.   Inhabit- 
ants of  Portland,  95. 

Inhabitants  of  Winthrop  v.  Fairbanks, 
351. 

Inhabitants    of    Worcester   v.    Green, 
375. 

Innes  v.  Sayer,  318. 

Innis  V.  Templeton,  452. 

Insurance  Co.  v.  Stinson,  197. 

International  Bank  of  Chicago  r.  WIl- 
shire,  233. 

International  Trust  Co.  v.  Schumann, 
138. 

Interstate  Bldg.  &  Loan  Ass'n  t.  Mc- 
Cartha,  222. 

Ipswich  V.  Browne,  379. 

Ipswich  Manuf'g  Co.  v.  Story,  229. 

Irish  V.  Sharp,  210. 

Irvine  v.  Greever.  78. 
V.  Irvine,  383. 
V.  Marshall.  402. 
V.  Newlln,  293. 
V.  Tarbat,  403. 

Ii-win  V.  Covode,  64. 
V.  Davidson,  201. 
V.  Patchen,  452. 

Irwin's  Heirs  v.  Longworth,  419. 

Isele  V.  Bank,  445. 

Iselin  V.  Starln,  353. 

Isham  V.  Morgan,  3. 

Ive  V.  Sams,  409. 

Ives  V.  Allyn,  475. 
V.  Lynn,  493. 

Ivie  V.  Stringfellow's  Adm'r,  490. 

Ivy  V.  Yancey.  195,  451,  468. 

Izard  V.  Middleton,  54. 


533 


CASES  CITED. 


rrhe  figures  refer  to  pages.] 


Jaokman  v.  Arlington  Mills,  369,  372. 
Jackson  v.  Aldrich,  158. 

V.  Alexander,  410. 

V.  Allen,  123,  152,  175. 
V.  Andrew,  G3,  66. 

V.  Andrews,  218. 

V.  Aspell,  95. 

V.  Austin,  226. 

V.  Ayers,  453. 

V.  Babcock,  167,  494. 

V.  Baker,  162. 

V.  Bard,  435. 

V.  Berner,  463. 

T.  Bradford,  455. 

V.  Bradt,  IGO. 

V.  Brownell,  154. 

V.  Brownson,  63,  145i. 

V.  Bryan,  157,  161. 

V.  Bull,  39. 

T.  Cadwell,  490. 

V.  Cairns,  459. 

V.  Campbell,  430. 

V.  Carpenter,  382. 

V.  Cary,  256. 

V.  Chamberlain,  225. 

V.  Chase,  434. 

T.  Chew,  302. 

V.  Churchill,  100,  109. 

V.  Clark,  421. 

V.  Cleveland,  266. 

V.  Crysler,  174. 

V.  Delacroix,  132. 

V.  Delancey,  272,  410,  473. 

V    Dillon's  Lessee,  411, 

V.  Dubois,  225. 

T.  Dunsbach.  299. 

V.  Elston,  223. 

V.  Embler,  57. 

V.  Fish,  410. 

V.  Ford,  226. 

V.  Foster,  464. 

V.  Harder,  344. 

V.  Harrison,  151. 

V.  Haviland,  459. 

V.  Hayner,  429. 

V.  Hodges,  82. 

V.  Housel,  38. 

V.  Hull,  241. 

T.  Huntington,  460,  463. 

T.  Ireland,  419. 


Jackson  v.  Jackson,  83,  297,  318,  4S1. 
V.  Johnson,  74,  75,  76,  303. 
V.  Kip,  88. 
V.  Lawrence,  187. 
V.  Leek,  434. 
V.  Leonard,  467. 
V.  Llgon,  317. 
V.  Loomis,  21. 
V.  M'Chesney,  427. 
V.  McKenney,  410. 
T.  McLeod,  164,  165. 
T.  Mancius,  57,  59. 
V.  Matsdorf,  268. 
V.  Merrill,  38. 
V.  Moore,  468. 
T.  Morse,  491. 
V.  Myers,  256. 
V.  Noble,  302. 
V.  O'Donaghy,  95. 
V.  Ogden,  453. 
V.  Page,  223. 

V.  Parkhurst,  150,  163,  165. 
V.  Phillips,  275,  276,  277. 
V.  Phipps,  434,  435. 
V.  Potter,  474. 
V.  Reeves,  424. 
V.  Roberts,  477. 
V.  Robins,  395. 

V.  Schoonmaker,  281,  303,  438. 
V.  Schutz,  152,  395. 
V.  Sebring,  410. 
V.  Sellick,  75,  76,  303. 
V.  Sheldon,  151. 
V.  Shepard,  437. 
V.  Smith,  465. 
V.  Stevens,  187,  446. 
V.  Swart,  410. 
V.  Thompson,  302. 
V.  Tibbits,  464. 
V.  Vanderheyden,  453,  458. 
V.  Van  Hoesen,  57. 
V.  Van  Valkenburgh,  214,  215w 
V.  Van  Zandt,  35. 
v.  Vermllyea,  461. 
V.  Vincent,  144. 
V.  Von  Zodlitz,  398. 
V.  Walker,  274. 
V.  Weaver,  234.  248. 
V.  Wells,  57. 
V.  Willard,  184,  212, 
V.  Winslow,  448. 
T.  Wood,  415. 


CASES  CITED. 


539 


[The  figures  refer  to  pages.] 


Jackson  «.  WoodruCE,  461,  462. 

V.  Wright,  454. 
Jacob  V.  Howard,  305. 
Jacobs  V.  Rice,  80. 
Jacques  v.  Short,  135. 
Jaffe  V.  Harteau,  139. 
Jamaica    Pond    Aqueduct    Corp.    v. 

Chandler,  350,  419. 
James  v.  Cowing,  269. 

V.  Dean,  157. 

V.  Morey,  1.S6,  220,  232,  273. 

V.  Sammis,  362. 

V.  Vanderheyden,  436. 
Jameson  v.  Hayward,  67. 
Jamison  v.  Periy,  195. 
Janney  v.  Sprigg,  77. 
Jarechi  v.  Society,  21. 
Jarvais  v.  Moe,  119,  122, 
Jarvis  v.  Dutcher,  192. 

V.  Frink,  232. 

V.  Hoffman,  127. 

V.  Woodruff,  237. 
Jauretche  v.  Proctor,  395. 
Jee  V.  Audley,  323. 
Jefferies  v.  Fort,  85. 
Jefferis  v.  Land  Co.,  423. 
Jeffersonville  v.  The  John  Shallcross, 

379. 
Jeffery  v.  Hursh,  186. 
Jencks  v.  Alexander,  202. 

V.  Smith,  8. 
Jenkins  v.  Atkins,  431. 

V.  Eldridge,  263. 

V.  Fahey,  32,  345. 

V.  Gething,  18,   19. 

V.  Hopkins,  445. 

V.  Hurt's  Com'rs,  430. 

V.  Jenkins,  297,  382. 

V.  Jenkins'  Heirs,  84. 

V.  Keymes,  394. 

V.  McCurdy,  10. 

V.  Newman,  494. 

V.  Wilkinson,  211. 
Jenkinson  v.  Auditor  General,  491. 
Jenks  V.  Horton,  60. 

V.  Pawlowski,  172. 
Jenkyn  v.  Vaughan.  394. 
Jenner  v.  Gurner,  172. 

V.  Morgan,  60. 
Jennings  v.  Conboy,  312. 

V.  McComb,  156. 
Jennings  v.  O'Brien,  170. 


Jennison  v.  Hapgood,  90,  91. 

Jenny  v.  Jenny,  100. 

Jeremy  v.  Elwell,  6. 

Jerome  v.  McCarter,  247. 

Jervoise  v.  Duke  of  Northumberland, 

258. 
Josser  V.  Gifford,  142. 
Jessou  V.  Wright,  297. 
Jesup  V.  Bank,  319. 
Jeter  v.  Davis,  468. 
Jevon  V.  Bush,  264. 
Jewell  V.  Porter,  386. 

V.  Warner,  49,  53. 
Jewett  V.  MUler,  453. 

V.  Tomlinson,  231,  247. 
Jiggitts  V.  Jiggitts,  105. 
Jockheck  v.  Commissioners,  495. 
John  and  Cherry  Sts.,  In  re,  184. 
John  MoiTis  Co.  v.  Southworth,  135. 
Johnson  v.  Baker,  436. 

V.  Bennett,  270. 

V.  Branch,  435. 

V.  Brown,  244. 

V.  Caitrell,  90. 

V.  Carter,  164. 

V.  Cawthorn,  193. 

V.  Clarke,   210. 

V.  Cornett,  210. 

V.  Gushing,  320. 

V.  Doll,  159. 

V,  Farley,  433,  435, 

V.  Harmon,  236. 

V.  Hart,  338. 

V.  Hoffman,  154. 

V.  Hosford,  202. 

V.  Houston,  184. 

V.  Jacob,  86. 

V.  Johnson,  64,  249,  265, 

V.  Jordan,  351,  352,  426. 

V.  McGehee,  438. 

V.  Mcintosh,  31,  400. 

V.  May,  378. 

V.  Moore,  429. 

V.  :Mosher,  2L 

V.  Muzzy,  378. 

V.  Neil,  96. 

V.  Norway,  486. 

V.  Perley,  87. 

V.  Plume,  85. 

V.  Richardson,  4,  118. 

V.  Skillman,  353. 

V.  Smith,  60. 


540 


OASES   CITED. 


[The  figures  refer  to  pages.] 


Johnson  v.  Stagg,  435. 
V.  Touchet,  318. 
V.  Van  Velsor,  189. 
V.  White,  195. 
V.  Williams,  223. 
V.  Zink,  204. 
Johnson's  Estate,  In  re,  109. 
Johnson's  Ex'r  v.  Wiseman's  Ex'r,  18. 
Johnson's  Trusts,  In  re,  329. 
Johnston  v.  Jones,  471. 
V.  Turner,  119. 
V.  Vandyke,  97. 
V.  Zane,  41. 
Johnston's  Lessee  v.  Haines,  488. 
Jones  V.  Adams,  351. 

V.  Bank,  209. 

V.  Bochove,  357. 

V.  Brewer,  9G,  100. 

V.  Bull,  13. 

V.  Butler,  383. 

V.  Carter,  174. 

V.  Chamberlin,  220. 

V.  Crow,  352. 

V.  Doe,  175. 

V.  Dm-rer,  152,  154. 

▼.  Franklin.  446,  447. 

V.  Gerock,  83. 

V.  Gilbert,  115. 

V.  Habersham,  329. 

V.  Hollopeter,  96. 

V.  Hughes,  88. 

V.  Johnson,  6. 

V.  Jones,  84,  98,  178,  334,  339. 

V.  Kimble,   424. 

V.  Lapham,  246. 

V.  Lemon,  468. 

V.  Millsaps,  139. 

V.  Parker,  137. 

V.  Pettibone.  423. 

V.  Powell,  111. 

V.  Pullen,  249. 

V.  Railway  Co.,  172,  175. 

V.  Ramsey,  12. 

V.  Smith,  211. 

V.  Swayze,  435. 

V.  Swearingen,  284. 

V.  Tainter,  226. 

V.  Tapling,  358. 

V.  Thomas,  196. 

V.  Trust  Co.,  239. 

V.  Van  Bochove,  357. 

T.  Wagner,  366. 


Jones  V.  Walker,  175. 

V.  Webb,  301. 

V.  Webster,  185. 

V.  Winwood,  317. 
Jones'  Ex'rs  v.  Jones,  24. 

V.  Stills,  57. 
Jorda'   V.  Adams,  297. 

V.  Corey,  438. 

V.  Godman,  124. 

V.  Katz,  189. 

V.  McClure,  36,  294. 

V.  Roach,  53. 

V.  Sayre,  184. 

V.  Woodin,  397. 
Joseph  Smith  Co.  T.  McGulnness,  19L 
Josephthal  t.  Heyman,  215. 
Joslin  V.  McLean,  153. 

V.  Rhoades,  395. 

V.  Wyman,  243. 
Joslyn  V.  Parlin,  181. 

V.  RockweU,  491. 
Josselyn  v.  Josselyn,  326. 
Jossey  V.  White,  57. 
Josslyn  V.  McCabe,  22. 
Jourdain  v.  Fox,  188,  454. 
Jourdan  v.  Haran,  93. 
'joy  V.  Bank,  367. 
Joyce  V.  Conlin,  356,  357. 

V.  W^illiams,  453. 
Joyner  v.  Farmer,  250. 
Judd  V.  Seekins,  231. 
Judge  V.  Insurance  Co.,  198. 

V.  Reese,  189. 
Judkins  v.  Woodman,  196. 
Junction  R.  Co.  v.  Harris,  73. 


K 


Kabley  v.  Light  Co.,  160. 
Kade  v.  I^uber,  84. 
Kain  v.  Fisher,  101. 
Kaine  v.  Weigley,  393. 
Kaler  v.  Beaman,  356. 
Kane  v.  Bloodgood,  274. 

V.  Sanger,  449. 
Kannady  v.  McCarron,  183. 
Kansas  City  Land   Co.   v.    Hill,   21«,. 

289. 
Kansas  Inv.  Co.  v.  Carter,  142. 
Karchner  v.  Hoy,  171. 
Karmuller  v.  Krotz,  360, 


CASES   CITED. 


641 


[The  flgnres  refer  to  pages.] 


Kaster  v.  McWilliams,  119. 
Kastor  v.  Newhouse,  139. 
Katz  v.  Scnnaier,  454. 
Kay  V.  Oxley,  361. 

V.  Railroad  Co.,  166. 

V.  Whitaker,  246. 
Kayser  v.  Maugham,  265. 
Kean  v.  TUford,  344. 
Kearney  v.  Kearney,  57,  61. 
Keates  v.  Lyon,  351. 
Keating  v.  Condon,  24. 

V.  Springer,  136. 
Keating    Implement   Co.    v.    Marshall 

Electric  Light  &  Power  Co.,  14. 
Keats  V.  Hugo,  364. 
Keeler  v.  Eastman,  63,  64. 

V.  Keeler,  15. 
Keepers,    etc.,    of   Harrow    School  v. 

Alderton,  63. 
Keepfer  v.  Force,  493. 
Keerl  v.  Fulton,  79. 
Kelchline  v.  Keichline,  437. 
Keily  v.  Monck,  173. 
Keith  V.  Horner,  192,  193. 
Keithley  v.  Wood,  18!t. 
Kelenk  v.  Town  of  Walnut  Lake,  354. 
Keller  v.  Ashford,  208. 
Kellett  V.  Shepard,  92. 
Kelley  v.  BaU,  110. 

V.  Canary,  85. 
Kellog  V.  Richardson,  393. 
Kellogg  V.  Malin,  446. 

T.  Robinson,  446. 
Kelly  V.  Austin.  12. 

V.  Baker,  122. 

V.  Waite,  158. 
Kelsey  v.  Durkee,  16. 
Kemp  V.  Bradford,  288. 

V.  Walker.  433. 
Kendall  v.  Hathaway,  13. 

V.  Lawrence,  217,  382. 

V.  Mann,  267. 
Kendrick  v.  Latham,  461. 
Kenege  v.  Elliot,  370. 
Kenlcott  v.  Supervisors,  211. 
Kennedy  v.  Borie,  206. 

V.  Kennedy,  50,  265. 

V.  McCartney's  Heirs,  402. 

V.  Moore,  231.  246. 

T.  Northup.  224. 
Kenner  v.  Contract  Co.,  174. 


Kenny  v.  Udall,  72. 
Kent  V.  Agard,  120. 

V.  Gerhard,  192. 

V.  Hartpoole,  79. 

V.  Hopkins,  481. 

V.  Judkins,  361. 

V.  Riley,  393. 

V.  Waite,  352. 
Kentucky  Railroad  Tax  Cases,  491. 
Kenyon  v.  Kenyon,  86,  99. 

V.  Lee,  305. 

V.  Shreck,  247. 
Kepple's  Appeal,  395. 
Kerley  v.  Kerley,  115. 
Kern  v.  A.  P.  Hotaling,  230. 

V.  Chalfant,  270. 
Kerngood  v.  Davis,  195. 
Kernochan  v.  Insurance  Co.,  199. 
Kerns  v.  Swope,  214,  437. 
Kerr  v.  Bell,  383. 

V.  Day,  217. 

V.  Freeman,  408. 

V.  Kingsbury,  23. 

V.  Kitchen,  216. 

V.  Moon,  474. 

V.  Shaw,  138. 
Kerr's  Trusts,  In  re,  319. 
Kesner  v.  Trigg,  224. 
Kessler  v    Letts,  364. 
Ketchum  v.  Corse,  330. 

V.  Shaw,  90. 
Kettleby  v.  Atwood,  23. 
Kevem  v.  W^ilUams,  327. 
Kew  V.  Trainor,  136. 
Keyport,  etc.,  Steamboat  Go.  v.  Farm- 
ers' Ti-ansp.  Co.,  6. 
Keys  V.  Test,  427. 
Keyser  v.  Mitchell,  41. 
Key's  Lessee  v.  Davis,  384. 
Kidd  V.  Dennison,  63,  64. 

V.  Lesler,  114. 
Kiddall  v.  Trimble,  111. 
Kieffer  v.  Imhoff,  358. 
Kiene  v.  Gruehle,  57. 
Kier  v.  Peterson,  7,  65. 
Kiernan  v.  Terry,  144. 
Kilbum  V.  Dodd,  473. 
Kilpatrick  v.  Baltimore,  171, 
Kimball  v.  Blaisdell,  456. 

V.  Bryant,  443. 

V.  Eaton,  429. 


542 


CASES  CITBD. 


[The  figures  refer  to  pages.] 


Kimball  v.  Johnson,  438. 
V.  liowlaud,  lt>2. 
V.  Sample,  420. 
Kimmel  v.  Benna,  454. 
Kincaid  v.  Howe,  417. 
King  V.  Carmichael,  462,  465. 
V.  Foscue,  62. 
V.  Fowler,  9. 
V,  Gilson,  446. 
V.  Howland,  9. 
V.  Jones,  148,  450. 
V.  King,  90. 
V,  Meighen,  238. 
V.  Miller,  63. 
V.  Ransom,  134. 
V.  Reed.  346. 
V.  Smith.  467. 
V.  Stetson,  83. 
V.  Whittle.  62. 
V.  Wilcomb,  17. 
Kingdom  v.  Nottle,  443,  450. 
Kingman  v.  Harmon,  290. 
Kingsbury  v.  Collins,  8.  160. 
Kings  Co.  Fire  Ins.  Co.  v.  Stevens,  422. 
Klngsley  v.  Ames,  163,  165. 
V.  Holbrook,  8. 
V.  Improvement  Co.,  360. 
V.  Klngsley,  116. 
V.  Purdom,  228. 
V.  Smith,  75. 
Klnna  v.  Smith,  209. 
Kinney  v.  Ensign,  229. 

V.  SlatteiT,  341. 
Klnsell  V.  Billmgs,  20. 
Kinsley  v.  Ames,  163,  165. 
Klnsolvmg  v.  Pierce,  111. 
Klntner  v.  Jones,  261. 

V.  McRae,  105. 
Kip  V.  Bank,  264. 
Klrcher  v.  Schalk,  184. 
Kirehman  v.  Lapp,  18. 
Kirk  V.  Dean,  106. 
Kirkham  v.  Sharp,  361. 
Kirkman  v.  Brown,  463. 
Kirkpatrlck  v.  :Mathlot,  34L. 
Klrkwood  v.  Flnegan,  364. 
Klssam  v.  Barclay,  16. 

V.  Dlerkes,  321. 
KltcheU  V.  Burgwin,  113,  118, 119,  121 

V.  Mudgett.  204,216. 
Kittle  V.  Van  Dyck,  85,  245. 


Klttredge  v.  Woods,  18. 
Kleespies  v.  McKeuzk-,  159, 
Klein  v.  McNamara,  ISS. 
Kleppner  v.  Laverty,  29d. 
Kliene  v.  Gruehle,  57. 
Kline  v.  Beebe,  75. 
Klock  V.  Walter,  187. 
Kloess  V.  Katt,  21. 
Knadler  v.  Sharp,  445. 
Knlckerbacker  v.  Seymour,  88. 
Knight  V.  Browne,  396. 
V.  Elliott.  424. 
V.  Land  Ass'u,  403. 
V.  Thayer,  452,  455. 
Knolles'  Case,  376. 
Knowles  v.  Dodge,  320. 
V.  Dow,  355. 
V.  Kennedy,  447. 
V.  Murphy,  144. 
V.  Pierce,  140. 
V.  Rabliu,  2:x>. 
V.  Toothaker.  424,  453. 
Knox  V.  Easton,  1S3,  206. 
V.  Hook,  464. 
V.  Knox,  201. 
Koch  V.  Briggs,  238. 
Koehler  v.  Brady,  152. 
Koerper  v.  Railway  Co.,  220. 
Kolasky  v.  Michels,  135. 
Koon  V.  Tramel.  217,  224. 
Koplltz  V.  Gustavus,  159. 
Kortright  v.  Cady,  228. 
Kottenbrock  v.  Cracraft.  SO. 
Kouvallnka  v.  Gelbel,  301. 
Kraemer  v.  Adelsberger,  190. 
Kramer  v.  Bank,  240. 
Kranlchfelt  v.  Slatteiy,  438. 
Kraut's  Appeal,  360. 
Kremer  v.  Railway  Co..  167. 
Kripp  V.  Curtis.  359. 
Ivrouse  V.  Ross,  18. 
Kruse  v.  Scrlpp.s.  206. 

V.  Wilson,  421. 
Kugel  V.  Painter,  136. 
Kuhlman  v.  Hecht.  359. 
Kuhn  V.  Kaler.  87. 
Kunes  v.  McCloskey.  494. 
Kurtz  V.  Hibner,  342. 
Kuydendall  v.  Devocmou,  109. 
Kyger  v.  Ryley,  184. 
Kyle  v.  Kavanngh,  412. 


CASES  CITED. 


543 


[The  figures  refer  to  pages.] 


Lacey  v.  Newcomb.  134. 
Lackman  t.  Wood,  458. 
Lacustrine  Fertilizer  Co.  v.  Lake  Guano 

&  Fertilizer  Co.,  7,  222. 
Lacy  V.  Comstock,  418. 

V.  Lockett,  125. 
Ladd  V  Ladd,  314,  315. 

T.  Wlggin,  209. 
Lade  v.  Slieperd,  362. 
Lafferty  v.  Milligan,  445. 
Laflin  v.  Griffiths,  15. 
Lahens  t.  Dupasseur,  273. 
Laidley  v.  Aiken,  226. 
Lake  v.  Doud,  191. 

Lake  Erie  &  W.  R.  Co.  v.  Kennedy, 
168. 
V.  Whitham.  328,  438. 
Lake  Superior  Ship  Canal,  Ry.  &  Iron 

Co.  V.  McCann,  12. 
Lakln  v.  Dolly,  144. 
Lamar  v.  Scott,  83,  100. 
Lamb  v.  Burba nk,  450. 
V.  Crosland,  353. 
V.  Foss,  197. 
V.  Jeffrey,  235. 
V.  Miller,  175. 
V.  Pierce,  214. 
V.  Shays,  123. 
V.  Tucker,  207. 
Lambert  v.  Kinnery,  123. 

V.  Thwaites,  313. 
Lamberton  v.  Stouffer,  155. 
Lambertville  Nat.  Bank  v.  McCready 

Bag  &  Paper  Co.,  245. 
Lamb's  Estate,  In  re,  114, 
Lamoimt  v.  Stimson,  214. 
L'Amom-eux  v.  Vandcuburgh,  213. 
Lampert  v.  Haydel,  41. 
Lampet's  Case,  286,  305. 
Lampman  v.  Milks,  351. 
Lamprey  v.  State,  423. 
Lamson  v.  Drake,  234. 
Lancashire  v.  Mason,  149. 
Lancaster  v.  Dolan,  319. 
Lancaster  County  Bank  v.  Staufifer,  80. 
Lance's  Appeal,  189. 
Landers  v.  Beck,  188. 
Landis'  Appeal,  164. 
Landon  y.  Piatt,  13. 


Lane  v.  Debenham,  315w 

V.  Duchac,  222. 

V.  King,  10. 

V.  Logue,  224. 

V.  Ludlow,  194. 

V.  Nelson,  153. 

V.  Shears,  188. 

V.  Woodruff,  449. 

V.  Young,  144. 
Lane's  Appeal,  475. 
Lang  V.  Cadwell,  207. 

V.  Cox,  19. 
Langdou  v.  Ingram's  Guardian,  40. 

V.  Keith,  210. 
Langley  ^.  Baldwin,  296. 

V.  Chapin,  494. 

V.  Vaughn,  191. 
Lanham  v.  Wilson,  53. 
Lanpher  v.  Glenn,  133. 
Lanphere  v.  Lowe,  13. 
Lansing  v.  Goelet,  242. 

V.  Van  Alstjne,  140. 
Lansing    Iron    &    Engine    Works    t. 

Walker,  12. 
Lautsbery  v.  Collier,  329. 
Large'8  Case,  395. 
Larned  v.  Donovan,  211,  220. 
Larrowe  v.  Beam,  97. 
Larsen  v.  Peterson,  354. 
Lasala  v.  Halbrook,  365. 
Lasher  v.  Lasher,  110, 

V.  McCreery,  490. 
Lashley  v.  Souder,  171. 
Lass  V.  Sternberg,  250. 
Lassell  v.  Reed,  17,  18. 
Lassells  v.  Cornwallis,  320. 
Latham  v.  Atwood,  8. 

V.  Henderson,  267,  268. 
V.  Udell,  434. 
Lathrop  v.  Bampton,  265. 
V.  Bank,  389,  452. 
V.  Clewis,  146. 
Latimer  v.  Logwood,  461. 
Latta  V.  Clifford,  469. 
Laughlin  v.  Dock  Co.,  433. 
Laughlin  v.  Braley,  185. 
Laum'er  v.  Francis,  355. 
Lavelle  v.  Corrignio,  481. 
Law  V.  People,  494. 
Lawrence,  In  re,  104. 
V.  Fletcher,  416. 


544 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Lawrence  t.  French,  141. 
V.  Hammett,  145. 
V.  Hebbard,  475,  478. 
V.  Jenkins,  3G8. 
V.  Springer,   KiS. 
Lawson  v.  Hunt,  269. 
V.  Morton,  98. 
V.  Nicholson,  230. 
Lawton  v.  Lawton.  17,  20. 

V.  Salmon,   15,   20. 
Laylin  v.  Knox,  203. 
Layson  v.  Grange,  122. 
Laytin,  In  re,  61. 
Lazell  V.  Lazell,  121. 
Leake  v.  Benson,  78. 
V.  Robinson.   326. 
Leaper  v.  Neagle,  57. 
Leathers  v.  Gray,  296. 
Leavell  v.  Lapowski,  122. 
Leavitt  v.  Fletcher,  139. 

V.  Lamprey,  107. 
Leaycraft  v.  Hedden,  256. 
Lechmere  &  Lloyd,  In  re,  289. 
Lee  V.  Bumgardner,  4. 
V.  Clark,  226. 
V.  Gaskell,  10. 
V.  Lake,  363. 
V.  Lindell,  93. 
V.  McLaughlin,  142. 
V.  Miller,  119. 
V.  Patten,  267. 
V.  Simpson,  309,  316. 
V.  Vincent,  315. 
Leede's  &  Crompton's  Case,  175. 
Leeds  v.  Wakefield,  32L 
Leeper  v.  Baker,  463. 
Le  Franc  v.  Richmond,  429. 
Leggett  V.  Doremus,  307. 
Lcgh  V.  Hewitt,  140. 
Lehigh  Coal  &  Nav.  Co.  v.  Early, 
Lehman  v.  Nolting,  158. 
Lehndorf  v.  Cope,  47,  59. 
Leigh  V.  Dickeson,  342. 

V.  Jack,  422. 
Leishman  v.  White,  141. 
Leiweke  v.  Jordan,  181. 
Leland  v.  Gassett,  17. 
Lemar  v.  Miles,  16. 
Lemon  v.  Graham,  37. 
Lenfers  v.  Henke,  88.  99. 
Lennig'B  Ex'rs  Y.  White,  461. 


175. 


Lennon  v.  Porter,  243. 

V.  White,  438. 
Lennox  v.  Brower,  207. 
Leonard  v.  Burr,  178,  282,  329. 
V.  Clough,  20. 
V.  Colcord,  361. 
V.  Leonard.  361,  467. 
V.  Morris,  241. 
V.  White,  426,  474. 
Lepage  v.  McNamara,  277. 
Lerned  v.  Morrill,  422. 
Lesley  v.  Randolph.  159,  160. 
Lessard  v.  Stram,  372. 
Lessee  of  Thompson's  Heirs  v.  Green, 

80. 
Lester  v.    Garland,   398. 
L'Etourneau  v.  Henquenet,  290. 
Le  Tourneau  v.  Smith,  159. 
Lett  V.  Randall,  323. 
Levet  V,  Needham,  268. 
Levy  V.  Ladd,  493. 
V.  Martin,  203. 
Lewes  v.  Ridge,  449. 
Lewis  V.  Baird,  220. 

V.  Caperton's   Ex'r,  193. 
Carstairs,  36L 
Coffee  Co.,  6. 
Jones,    18. 
Kirk,  211,  226. 
Klotz,  10. 
Lewellyn,  316b 
V.  Lewis,  109. 
V.  Lichty,  115. 
Lyman,  155. 
McNatt,  9. 
Nangle,  234. 
Payn,  141. 
Pier  Co.,  23. 
Rees,  261. 
Richey,  240. 
Sheldon,  145,  148. 
Smith,  109. 
Starke,  273, 
Stein,  369. 
Wilkins,  150. 
Lewis'  Appeal,  338. 
Lewis'  Lessee  v.  Beall,  411, 
Leydecker  v.  Brintnall,  1381. 
Leyman  v.  Abeel,  375. 
Liefe  v.  Saltingstone,  310. 
Liford's  Case,  49. 


CASES  CITED. 


646 


[The  figures  refer  to  pages.] 


Ligare  v.  Semple,  103. 

Liggins  V.  Inge,  3.")S. 

Liley  v.  Hey,  32S. 

Lillibridge  v.  Coal  Co.,  4. 

Linahan  v.  Barr,  12. 

Lincoln  v.  Perry,  479. 

Lincoln  Bldg.   &  Sav.  Ass'n  v.  Hass, 

185. 
Linclauer  v.  Yoiinglove,  454. 
Liudeman  v.  Liudsey,  358, 
Linden  v.  Graham.  102. 

V.  Hepburn,  148. 
Lindley  v.  Dakin,  444. 

V.  Groff,  43(J. 
Lindsay  v.  Garvin,  229. 
Lindsley  v.  Brewing  Co.,  149. 
Linn  Co.  Bank  v.  Hopkins,  118. 
Lion  V.  Burtiss,  302. 
Lippencott   v.   Allander,   379. 
Liscomb  v.  Root,  340. 
Lissa  V.  Posey,  193. 
Litchfield  v.  Cud  worth,  80. 
IJthgow  V.  Kavenagh,  38. 
Littell  V.  Jones,  125. 
Little  V.  Bennett,  313. 

V.  Downing,  4G2,  4G8. 

V.  Giles.  451. 

V.  Macadaras,  139. 

V.  Palister,  142. 

V.  Willford,  277. 
Littlejohn  v.  Gordon,  241. 
Little  Kock  Granite  Co.  v.  Shall,  152. 
Littleton  v.  Giddings,  214. 
Livett  V.   Wilson,   352. 
Livingston  v.  Bell,  394. 

V.  Greene,  284. 

V.  Ketcham,  375. 

V.  Livingston,  264. 

v.  Reynolds,  304. 

V.  Tanner,  164,   165. 

v.  Ten  Broeck,  375. 
Livingston's  Ex'rs  v.  Livingston,  145. 
Lloyd  V.  Carew,  323. 

v.  Conover,  93. 

V.  Hoo  Sue,  235. 

V.  Spillet,  253,  266. 
Lobdell  V.  Hayes,  106. 
Locke  V.  Caldwell,  240. 

V.  Rowell,  59,  115,  118,  122. 
Lockett  V.  Lockett,  38. 
Lockhart  v.  Hardy,  205. 
Lockman  v.  Rellly,  247. 
REAL  PROP. — 35 


Lockwood  V.  Benedict,  246. 
Loddington  v.  Kinie,  287,  290. 
Loeb   V.    Drakeford,   431. 

V.  Huddleston,    2.39. 
Loftis  V.  Loftis,  126. 
Lofton  V.  Murchison,  38. 
Loftus'  Case,  71. 
Logan  V.  Bell,  309. 

V.  Eaton,  453. 

V.  Herron,   161. 

V.  Phillips,  108. 
Lomas  v.  Wright,  292.  302. 
Lombard  v.  Culbertson,  222. 
London,   Paris  &  American   Bank   v. 

Smith,  245. 
London   &   S.   W.    Ry.  Co.  v.  Gomm, 

327. 
Loudon  &  Westminster  Loan  &  Dis- 
count Co.  V.  Drake,  22. 
Lone  Star  Brewing  Co.  v.  Felder.  126. 
Long  V.  Beard,  380. 

V.  Blackall,  323,  324. 

V.  Cruger.  454. 

V.  Dollarhide,  223. 

V.  Fuller,  407. 

V.  Long,  236. 

V.  Mast,  464. 

V.  Mellet,  235. 

V.  Moler,   445. 

V.  Wagoner,  420. 
Longfellow  v.  McGregor,  211. 
Longhead  v.   Phelps,  323. 
Loomer  v.  Wheelwright,  232. 
Loomis  V.  Brush,  387. 

V.  Knox.  234. 

V.  Pingree,  491. 

V.  Wilbur,  61. 
Loosemore  v.  Knapman,  204. 
Lord  V.  Bunn,  397. 

V.  Lord,  110. 

V.  MoiTis,  240. 
Lord  Altham  v.  Earl  of  Anglesey,  253. 
Lord  Say  &  Seal's  Case,  416. 
Loring  v.  Bacon,  366. 

V.  Eliot,  280. 

V.  Taylor,  130. 
Lorman  v.  Benson,  6. 
Losey  v.  Bond,  3<S6. 

V.  Simpson,  223. 
Lothrop  V.  Foster.  87. 

V.  Thayer,   139. 
Loubat  V.  Kipp,  435. 


546 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Loud  V.  Darling,  442, 
Lougbi'au  V.  Ross,  23. 
Louisville  &   N.   R.   Co.    v.    Philyaw, 

468. 
Lounsberry  v.  Snyder,  138. 
Lounsbury   v.  Norton,  237. 
Love  V.  Wyndham,  327. 
Lovojoy  V.  Lovett,  421. 
Lovelace  v.  Hutchinson,  250. 
Loveland  v.  Clark,  249. 
Loveless  v.  Thomas,  121. 
Lovell  V.  Frost,  465. 

V.  Smith,  357. 
Loverin  v.  Trust  Co.,  232. 
Lovingston  v.  St.  Clair  Co.,  471. 
Low  V.  Burron,  68,  323,  32-1. 

Lowe  V.  Miller,  154. 

Lowell  V.  Robinson,  423. 

Lowell    South    Congregational    Meet- 
ing House  V.  Hilton,  135. 

Loweiy  v.  Rowland,  343. 

Lowrie  v.  Ryland,  57. 

Lowry  v.  Muldrow,  328. 

Lowry's  Lessee  v.  Steele,  76,  79. 

Lowther  v.  Cavendish,  173. 

Loy  V.  Insurance  Co.,  198. 

Lucas  V.  Coulter,  139. 
V.  Rickerich,  71. 

Luce  V.  Carley,  422. 

Luch's  Appeal,  192. 

Lucy  V.  Levington,  447. 

Luddington  v.  Kime,  290. 

Ludlow  v.  Railway  Co.,  175. 

Lufkin  V.  Curtis,  107. 

Luke  V.  Marshall,  477. 

Lull  V.  Matthews,  184. 

Lumpkin  v.  Wilson,  432. 

Lumpkins  v.  Johnson,  488. 

Lunt  V.  Brown,  145. 

Luntz  V.  Greve,  78. 

Lupton  V.  Lupton,  204. 

Lushington  v.  Boldero,  62. 

Lute  V.  Reilly,  120. 

Lutkins  v.  Leigh,  205. 

Luttrell  v.  Wells,  488. 

Lutwich  v.  Milton,  254. 

Lux  v.  Haggin,  423. 

Lybe's  Appeal,  371. 

Lyford  v.  Railroad  Co.,  441. 

Lykens  Valley  Coal  Co.  v.  Dock,  7. 

Lyle  V.  Ducomb,  181. 
V.  Richards,   53. 


Lyman  v.  Hale,  4. 
Lj'nch  V.  Cannon.  469. 

V.  Gas  Co.,  152. 

V.  Livingston,  438. 

V.  Pfeiffer,  232. 
Lynde  v.  Williams,  464. 
Lynn's  Appeal,  63,  64. 
Lyon  v.  Mcllvaine,  231. 

V.  Parker,  137. 

V.  Reed,  409. 

V.  Robbing,  234. 
Lyons  v.  Bodenhamer,  216. 

V.  Van  Riper,   429. 
Lytle  V.  Lytle,  37. 

V.  Turner,  216. 


M 

Maatta  v.  Kippola,  116. 
Mabary  v.  DoUarhide,  467. 
Mabry  v.  Harp,  8. 

V.  Harrison,  125. 
Mabury  v.  Ferry  Co.,  379. 
McAleer  v.  Schneider,  473,  474. 
McAllister  v.  Devane,  358. 
McAnally  v.  Heflin,  386. 
McArth  a-  v.  Franklin,  84,  235. 
V.  Moms,  443. 
V.  Porter,  91. 
V.  Robinson,  187,  234. 
V.  Scott,    324. 
McBee  v.  Sampson,  149. 
McBeth  V.  Trabue,  452. 
McBride's  Estate,  82. 
McBroom  v.  Thompson,  168. 
McCabe  v.  Bellows,  91,  235. 
V.  Mazzuchelli,  116. 
V.  Swap,  90. 
McCahill  v.  McCahUl,  26S. 
McCall  V.  Walter,  16. 
McCampbell  v.  Mason.  290. 
McCarn  v.  Wilcox,  228. 
McCartee  v.  Asylum,  389. 

V.  Teller,  107,  lOS. 
McCartney  v.  Osburn,  290. 
McCarty  v.  Leggett,  443. 

V.  Williams,  193. 
McCauley  v.  Grimes,  85. 

V.  Porter,  190. 
McClanahan  v.  Porter,  97. 


CASES  CITED. 


547 


[The  figures  refer  tc  pages.] 


McClary  v.  Bixby,  IIG,  119. 

V.  StiUI,  384. 
McClellan  v.  McClellan,  2G2,  2G3. 
McClintock  v.  MeCliatock,  189. 
M'Clung  V.  Ross,  340. 
AlcClure  v.  Cook,  171. 

V.  Fairchild,   104. 

V.  Harris,  85,  90. 
McClu-g  V.  Price,  141. 
McConihe  v.  Fales,  206. 
McConn  v.  Delany,  425. 
McCoaneU  v.  Blood,  15,  2L 

V.  Downs,  449. 
McCord  V.  Herrick,  367. 

V.  High,  356,  357. 

V.  Ochilti-ee,  277. 
McCorm^ck  v.  James,  43S. 
McOormic  v.  Leggett,  383. 
McCormick  v.  Horan,  372. 

V.  Knox,  202. 

V.  Irwin,  203. 

V.  Leonard,  214. 

V.  Taylor,  100. 

V.  Wilcox,  119. 
McCormick  Harvesting  Mach.   Co. 

Gates,  396. 
MeCorry  v.  King's  Heirs,  59,  75. 
McCosker  v.  Brady,  272. 
McCoy  V.  Danley,  369. 
McCracken  v.  Rogers,  484. 
M'Crady's  Ex'rs  v.  Brisbane,  445. 
McCrea  v.  Marsh,  168. 

V.  Purmort,  427. 
McCready  v.  Virginia,  5. 
McCreaiy  v.  Lewis,  110. 
McCreery  v.   Davis,   111. 
McCrelish  v.  Churchman,  441. 
McCrory  v.  Little,  231,  232. 
McCrosky  v.  Walker,  118. 
McCuUoch's  Lessee  v.  Endaly,  224. 
McCuUough  V.  Allen,  109. 

v.  Irvine,  65. 

V.  Irvine's  Ex'rs,  20,  64. 

V.  Wall,  421,  471. 
McCurdy  v.  Canning,  338,  343. 
M'Cutchen  v.  Miller,  218. 
McDaniel  v.  Grace,  76. 
McDavid  v.  Wood,  12,  20. 
McDermott  v.  French,  337. 

V.  Railroad  Co.,  143. 
McDodriU  v.  Lumber  Co.,  342. 


McDonald  v.  Badger,  339. 

V.  Black,  198. 

v.  Clark,  122. 

V.  CrandaU,  115,  123,  124. 

V.  Hannah,  95. 

V.  Heylin,  60. 
McDonogh's  Ex'rs  v.  Murdock,  263. 
McDonough  v.  Jefferson  Co.,  461. 

V.  Starbird,  16. 
McDowell  V.  Addams,  484. 
McElroy  v.  McElroy,  259,  261. 
McFadden  v.  Crawford,  12,  14, 

V.  Ice  Co.,  6. 

V.  Worthington,    225. 
McFarland  v.  Birdsall,  394. 

V.  Febiger's  Heirs,  107. 
McFarlane  v.  Williams,  13L 
McFarlin  v.  Essex  Co.,  5. 

V.  Leaman,  341. 
McGahan  v.  Bank,  341. 
McGale  s-.  McGale,  231,  488. 
McGee  v.  Hall,  287. 

V.  McGee's  Heirs,  106. 
McGehee  v.  McGehee,  97. 
McGiven  v.  Wheelock,  232. 
McGIynn  v.  Brock,  140. 
McGowan  v.  McGowan,  268. 
McGowen  v.  Baldwin,  110. 
McGown  V.  Yei-ks,  247. 
MacGregor  % .  Gardner,  431. 
McGuffey  v.  Flnley,  244. 
Machemer's  Estate,  In  re,  24, 109. 
Machir  v.  May,  469. 
Mcllvame  v.  Smith,  41. 
Mcllwain  v.  Karstens,  489. 
Mclnerney  v.  Beck,  412,  416. 
Mcintosh  V.  Ladd,  105. 
Mclntyre  v.  Clark,  59,  132. 

V.  Costello,  84. 

V.  Mclntyre,  396. 
Mclver  v.  Estabrook,  23. 
McJunkin  v.  Dupree,  17. 
Mack  V.  Patchin,  138. 
Mackay  v.  Douglas,  394. 
McKeage  v.  Insurance  Co.,  21. 
McKean  &  Elk  Land  Imp.  Co.  v.  Mitch- 
ell, 220. 
McKee  v.  Brown,  110. 

V.  Cottle,  75. 

V.  Marshall,  299. 

V.  Perchment,  363. 

V.  Wilcox,  116. 


648 


CASES  CITED. 


(The  figures  refer  to  pages.] 


McKee's  Lessee  v.  Pfout,  59,  81. 
McKelway  v.  Seymour,  280. 
McKenna  v.  Kirk  wood,  211,  234. 
McKenzie  v.  City  of  Lexington,  22. 

V.  Hatton,  141. 
Mackey  v.  Proctor,  79. 

V.  Wallace   120. 
Mackey's  Adiu'r  v.  Coatos,  273. 
Mackie  v.  Cairns,  394. 
McKim  V.  Mason,  15,  183. 
McKlnney  v.  Burns,  2G6. 
V.  Settles,  417. 
V.  Stacks,  57. 
McKinnis  v.  Mortgage  Co.,  144, 
McKinnon  v.  Meston,  463. 
Mackintosh  v.  Trotter,  22. 
McKlsslck  V.  Ashby,  144. 

V.  Pickle,  17G. 
Macknet's  Ex'rs  v.  :Macknet,  284. 
McKnight  v.  Ratcliff,  IGO. 
Mackreth  v.  Symmons,  194. 
McLane  v.  Paschal,  190. 
McLaren  v.  Anderson,  125. 
Maclary  v.  Turner,  143. 
McLaughlin  v.  Johnson,  14. 
V.  McLaughlin,  341. 
V.  Nash,  20. 
V.  Salley,  154. 
V.  Shepherd,  189. 
McLean  v.  Warehouse  Co.,  142. 
Macleay,  In  re,  395. 
.McLellan  v.  Turner,  39. 

V.  Whitney,  155. 
:McLemore  v.  McNeley,  4.52. 
McLenan  v.  Sullivan,  267. 
:McLendon  v.  Horton,  59. 
:McI.ennan  v.  Grant,  144. 
M'Loughlin  v.  Craig,  140. 
McMahan  v.  .Tacoway,  152. 
V.  Kimball,  100. 
V.  McMahan,  344. 
McMahon  v.  Russell,  184. 
V.  Williams,  354. 
*  McManus  v.  Carmichael,  5,  6,  423. 
V.  Shoe,  etc.,  Co.,  136. 
McMasters  v.  Negley,  77. 
M'Mechan  v.  Griffing,  217. 
McMichael  v.  Craig,  59. 
McMillan  v.  Parker,  117. 
V.  Richards,  184. 
V.  Warner,  121. 
V.  Wehle,  460. 
V.  William  Deering  &  Co.,  385. 


McMoncgle  v.  Wilson,  118. 
McMurphy  v.  Miuot,  140,  148. 
Mc:\Iurray  v.  Shuck,  113. 
McMurtry  v.  Brown,  430. 
McNair  v.  Plcotte,  228. 
McNaughton  v.  McXaughton,  477. 
McNeeley  v.  Hart,  154. 
ilcNeely  v.  Langan,  467. 

V.  McNeely,  481. 
McXeer  v.  McNeer,  83. 
McNiece  v.  Eliason.  235. 
McNeil  V.  Ames,  149. 
V.  Call,  243. 
V.  Jordan,  452. 
McParlaud  v.  Larkin.  342. 
McPherson  v.  Atlantic  &  P.   R.   Co., 
139. 
V.  Hayward,  238. 
V.  Housel.  246. 
V.  Rollins,  222. 
McQuie  V.  Peay,  191. 
•McRae  v.  McRae,  105. 
McRee  v.  Means,  261. 
McRimmon  v.  Martin,  193. 
McRoberts  v.  Washburne,  379. 
McSorley  v.  Larissa,  210. 
McTigue  V.  McTigue,  78. 
Maddocks  v.  Jellison,  102. 
Maddox  v.  Maddox's  Adm'r,  173. 
Madigan  v.  Burns,  174. 

V.  McCarthy,  21. 
Madland  v.  Benland,  493. 
Magaw  V.  Field,  478. 
Ma  gee  v.  Magee,  126. 

V.  Mellon,   110. 
Magennis  v.  MacCuUogh,  409. 
Magie  v.  Reynolds,  207. 
Magill  V.  Hinsdale,  144. 
Magnusson  v.  Johnson,  189. 
Magor  V.  Chadwick,  373. 
Magi-uder  v.  Peter,  24. 
IMahoney  v.  Young,  106. 
Main  v.  Feathers,  135. 
Maine  v.  Cumston.  367. 
Major  V.  Bukley.  419. 

V.  Watson,  424. 
Makepeace  v.  Bancroft,  422. 

V.  Worden,  362. 
Malloney  v.  Horan,  106.  451. 
Malone  v   Komrumpf,  121. 
V.  McLaurin,  76.  79. 
V.  Majors,  109. 
V.  Roy,  195.  201. 


CASES  CITED. 


549 


[The  figures  refer  to  page's.] 


Malony  v,  Horan,  123. 
Manaudas  v.  Mann,  437. 
Manchester  v.  Doddridge,  156,  157. 
Mandelbaum  v.  McDonell,  395. 
Mandersou  v.  Lukens,  285,  301. 
Mandlebaum  v.  McDonell,  314,  395. 
Mangles  ^.  Brewing  Co.,  244. 
Manhattan  Co.  v.  Evertson,  393. 
Manhattan  Tiiist  Co.  v.  Sioux  City 

N.  Ry.  Co.,  146. 
Manly  v.  Pettee,  344. 
Manu  V.  Corrington,  125. 
V.  Jackson,  178. 
V.  Mann,  195,  232. 
V.  Pearson,  425. 
Manning  v.  Laboree,  91,  92. 
V.  Ogden,  18. 
V.  Smith,  419. 
Manning's  Case.  79. 
-Mansfield  v.  McGinnis,  341. 
V.  Mansfield,  431. 
V.  Watson,  385. 
Mantz  V.  Buchanan,  89.  90,  104. 
Manwaring  v.  Tabor,  48. 
Maple  V.  Kussart,  452,  453. 
Maples  V.  Millon,  8. 
Marco  v.  Hicklin,  233. 
Mardes  v.  Meyers,  416. 
Mardis  v.  Meyers,  421. 
Marin  v.  Stearns,  409. 
Marker  v.  Marker,  62. 
Markland  v.  Crump,  135. 
Marks  v.  Sewall,  346. 
Marlow  v.  King,  485. 
Marsellis  v.  Thalhimer,  74. 
Marsh  v.  Austin,  212. 
V.  Brace,  378. 
V.  Lazenby,  113. 
V.  McNider,  143. 
V.  Renton,  276,  277. 
Marshall  v.  Bacheldor,  120. 
V.  Conrad.  388. 
V.  Gingell,  294. 
V.  Heard,  142. 
V.  McPherson,  96. 
V.  Palmer,  343. 
V.  Roberts,   223. 
Marsters  v.  Cling,  145. 
Marston  v.  Rowe,  466. 
Martin  v.  Ballou,  172. 
V.  Cauble,  214. 


& 


Martin  v.  Cook,  418. 

V.  Fridiey,  236. 

V.  Goble,  3r>4. 

V.  Houghton,  166. 

V.  Hughes,  118. 

V.  Jackson,  224. 
Maugham,  331. 
McReynolds,  245. 
Parsons,  492. 
Pine,  67. 
Price,  357. 
Roe,  23. 
Smith,  229,  333,  336. 

V.  Stearns,  409. 

V.  Tobin,  150,  281. 

V.  Waddell,  5,  31. 

V.  Waddell's  Lessee,  .399,  400,  402. 
Martin  Clothing  Co.  v.  Henly,  122. 
Martindale  v.  Kendrick,  484. 
Martin's  Heirs  v.  Martin,  106. 
Martyn  v.  Clue,  136. 

V.  Knowllys,  342. 
Marvin  v.  Ledwith,  288. 

V.  Mining  Co.,  366. 

V.  Smith,  107. 

V.  redder,  230. 
Marwick  v.  Andrews,  176. 
Marwood  v.  Turner,  476. 
Maryland  Mut.  Ben.  Soc.  v.  Clendinen, 

310. 
Mary  Portington's  Case,  51. 
Ma  sen  v.  Horton,  353. 
Mask  V.  Allen,  452. 
Mason  v.  Fenn,  143. 

V.  Mason's  Ex'rs,  273. 

V.  White.  420. 
Massey  v.  Hubbard,  216. 

V.  Huntington,  260. 

V.  Modawell,  24. 
Massie  v.  Hiatt's  Adm'r,  480. 
Massot  V.  Moses,  374. 
Masters  v.  Pollie,  4. 
Masterson  v.  Munro,  421. 

V.  Pullen,  24. 
Masury  v.  Southworth,  137. 
Mathews  v.  Duryee,  90. 
Mathewson  v.  Smith,  90,  91. 
Mathis  V.  Board  of  Assessors,  6. 

V.  Hammond,  301. 
V.  Stufflebeam,  267. 
Matlock  V.  Lee,  101. 


650 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Matthews  v.  Hudson,  304. 
V.  McPherson,  271,  272. 
V,  Trust  Co.,  203. 
V,  Ward,  31. 
V.  Wliitaker,  13G. 
Matthias'  Estate,  In  re,  481. 
Mattocks  V.  Steams,  71,  81. 
Matts  V.  Hawkins,  3G7. 
Maul  V.  Rider,  214. 
Maulding  v.  Scott,  286. 
Maule  V.  Ashmead,  138. 

V.  Weaver,  432. 
Maundrell  v.  Maundrell,  311,  317,  322. 
Maupiu  V.  Emmons,  214. 
Maurhoffer  v.  Mittnacht,  238. 
:Mautz  V.  Buchanan,  96. 
Maxey  v.  O'Connor,  403. 
Maxon  v.  Gray,  95. 
Maxwell  v.  Newton,  250. 
Maj  V.  Le  Claire,  215. 

V.  Oil  Co.,  152. 
Mayburry  v.  Brien,  85,  89,  92,  93. 
:.Iayfield  v.  Maasden,  120. 
Mayham  v.  Coombs,  222. 
Mayho  v.  Buckhurst,  137. 

V.  Cotton,  lis. 
Maynard  v.   Esher,   364. 
V.  Hunt,  230. 
y.  Maynard,  434. 
Mayo  V.  Newhoff,  366. 

V.  Woods,  493. 
Mayor  of  Kingston  v.  Horner,  352. 
Mayor,  etc.,  of  Allegheny  v.  Ohio  &  P. 

R.  Co.,  401. 
Mayor,   etc.,   of  Cartersville  v.   Lyon, 

142. 
Mayor,  etc.,  of  City  of  Mobile  v.  Es- 

lava,  423. 
Mayor,  etc.,  of  Congleton  v.  Pattison, 

137. 
Mayor,  etc.,  of  New  Orleans  v.  U.  S., 

31. 
Mayor,  etc.,   of  New   York  v.   Brook- 
lyn Fire  Ins.  Co.,  136. 
V.  Hamilton  Fire  Ins.  Co.,  136. 
V.  Mabie,  138. 
V.  Stuyvesant's  Heirs,  324. 
Mayor,  etc.,  of  Thetford  v.  Tyler,  156. 
Maywood  Co.  v.  Village  of  Maywood, 

219. 
Meacham  v.  Buntling,  81. 
V.  Steele,  236. 


Meader  v   Place,  114. 

Mebane  v.  Mebane,  397. 

Mechanics'  &  Traders'  Fire  Ins.  Co.  v. 

Scott,  140. 
Mecum  v.  Railroad  Co.,  442. 
Medary  v.  Gathers,  139. 
Medley  \    Medley,  88,  306. 
Mooch  V.  Meech,  114. 
Meehan  v.  Bank,  242. 
V.  Forrester,  187. 
V.  Williams,  217. 
Meig's  Appeal,  12. 
Meley  v.  Collins,  4.52. 
Mellon  V.  Reed,  344. 
Mellon's  Appeal,  224. 
Melross  v.  Scott,  193. 
Melton  V.  Fitch,  487. 
Melvin  v.  Proprietors,  71,  73,  80,  458. 

V.  Whiting,  352,  353,  355,  374. 
Jklemphis  &  C.  R.  Co.  v.  Neighbors,  174. 
Mendenhall  v.  Klinck,  166. 
Monger  v.  Ward,  148. 
Menzies  v.  Breadalbane,  472. 
Meraman's  Heirs  v.  Caldwell's  Heirs. 

80,  81,  303. 
Mercer  v.  Selden,  75. 

V.  Woodgate,  363. 
Merchants'  Nat.  Bank  v.  Stanton,  21. 
Merchants'  &  Farmers'  Bank  v.  Her 

vey  Plow  Co..  224. 
Mercier  v.  Railway  Co.,  37. 
Meredith  v.  Joans,  262. 
Meriwether  t.  Booker,  71. 

V.  Howe,  71. 
Merket  v.  Smith,  270. 
Merreck  v.  Wallace,  221. 
Merrill  v.  Brown,  255,  260. 

V.  Bullock,  164. 

V.  Baffin,  480. 

V.  Elliott,  181. 

V.  Emeiy,  109,  286. 

V.  Hayden,  477. 

V.  Hurley,  181. 

V.  Luce,  220. 
Merrills  v.  Swift,  435. 
Merriman  v.  Moore,  207. 
Merritt  v.  Bartholick,  210,  245. 

V.  Clasou,  427. 

V.  Disney,  38. 

V.  Hosmer,  236. 

V.  Hughes,  458. 

V.  Judd,   16,   23. 


CASES  CITED. 


551 


[The  figures  refer  to  pages.] 


Merritt  v.  Loan  Co.,  272. 

V.  Morse,  447,  449. 

V.  Scott,  61. 

V.  Simpson,  3S3. 
Merritt's  Lessee  v.  Home,  75. 
Mershon  v.  Castree,  196. 
Meserve  v.  Meserve,  96,  99. 
Meservey  v.  Snell,  449. 
Messer  v.  Reginnitter,  466. 
Messick  v.  Railway  Co.,  168. 
Metcalf  V.  Smith,  121. 
Methodist  Church  v.  Remington,  389. 
Methodist  Episcopal  Church  v.  Clark, 

277. 
Mettler  v.  Miller,  75. 
Metz  V.  Todd,  229. 
Metzger  v.  Huntington,  207. 
Meyer  v.  Glaus,  114. 

V.  Henderson,  153. 
Mhoon  V.  Cain,  464. 
Michel  V.  O'Brien,  152. 
Michigan  Ins.  Co.  of  Detroit  v.  Brown, 

240,  246. 
.Aiichigan  Mut.  Life  Ins.  Co.  v.  Conant, 
214. 

V.  Cronk,  21. 
Michigan  Trust  Co.  v.  Lansing  Lum- 
ber Co.,  196. 
Mickles  v.  Dillaye,  201. 
Middaugh  v.  Bachelder,  207. 
Middlebrook  v.  Corwin,  17. 
Middlemore  v.  Goodale,  450. 
Middleton  v.  Findla.  416. 

V.  Middleton,  205. 

V.  Pritchard,  5. 
Mldgley  v.  Walker,  343. 
Midland  Ry.  Co.  v.  State,  15. 
Midland  Terminal  &  Ferry  Co.  v.  Wil- 
son, 380. 
Mildmay's  Case,  50,  82,  266,  427. 
Miles  V.  Barrows,  424. 

V.  Miles,  64. 
Milford  Sav.  Bank  v.  Ayers,  122. 
Milhan  v.  Shai-p,  379. 
Millar  v.  Humphries,  459. 
Millard  v.  Truax,  202. 
Milledge  v.  Lamar,  88. 
Miller  v.  Aldrich,  198. 

V.  Baker,  8,  17. 

V.  Beverly,  100. 

V.  Bingham,  213. 

V.  Bradford,  221. 


Miller  V.  Claik,  249. 

V.  Craig,  384. 

V.  Curry,  201. 

V.  Ewing,  454. 

V.  Fletcher,  436. 

V.  Hepburn,  471. 

V.  Lapman,  358. 

V.  Levi,  178. 

V.  Lincoln,  201. 

V.  Little,  127. 

V.  Lullman,  434. 

V.  Maguire,  140. 

V.  Marckle,  114. 

V.  Meers,  434. 

V.  MiUer,  81,  306,  316,  455. 

V.  Plumb,  20. 

V.  Prescott,  136,  152. 

V.  Railway  Co.,  166. 

V.  Richards,  360. 

V.  Shackleford,  80,  143,  303. 

V.  Shields,  64,  139. 

V.  Thompson,  206,  246. 

V.  Tipton,   184. 

V.  Waddingham,  13,  21. 

V.  Wilson,  84,  266. 
MUler's  Appeal,  120. 
Millett  V.  Davey,  201. 

V.  Lagomarsino,  461,  462. 
MlUikan  v.  Patterson,  491. 
Milling  V.  Becker,  409. 
Mills  V.   Catlin,  443. 

V.  Franklin,   38. 

V.  Gore,  433. 

V.  Learn,  380. 

V.  Railway  Co.,  171. 

V.  Sampsel,   138. 

V.  Seward,   297. 

V.  Smith,  223. 

V.  Van  Voorhies,  91.  247. 
Milner  v.  Clavert,  485. 

V.  Shipley,  492. 
Milnes  v.  Branch,  378. 
Milton  V.  Turner,  221. 
Mims  V.  Mims,  221. 
Minard  v.  Burtis,  165. 
Miner  v.  Beekman,  202. 

V.  Gilmour,  369. 

V.  Lorman,  342. 
Mines,  Case  of,  7,  39. 
Minneapolis  Mill  Co.  v.  Minneapolis  St 
St.  L.  Ry.  Co.,  108. 

V.  Tiffany,  31. 


552 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Minneapolis  W.  Ry.  v.  Minneapolis  & 

St.  L.  lly.  Co.,  107,  331. 
Minuig  v.Batdorff,  288. 
Minot  V.  Broolis,  4G1. 

V.  Taylor,  324. 
Minsliull  V.  Oakos,  136,  137. 
Winter  v.  Crouimelin,  403. 
Minton  v.  Steele,  471. 
Mission  of  Immaculate  Virgin  v.  Cro- 

nin,  400. 
Missouri,  K.  &  T.  Ry.  Co.  v,  Fulmore, 

142. 
Missouri  Pac.  Ry.  Co.  v.  Keys,  369. 
Mitchell  V.  Billingsley,  22. 

V.  Campbell,  38. 

V.  Coombs,  229. 

V.  Kiunard,  454. 

V.  Pillsbury,  445. 

V.  Ryan,  435. 

V.  Simpson,  297. 

V.  Starbuck,  344. 

V.  >Yarner,  3.  445. 

V.  Wilson,  419. 

V.  Winslow,  185. 
Mitchell's  Lessee  v.  Ryan,  75. 
Mittel  V.  Karl,  335. 
Mizell  V.  Burnett,  171. 
Model  Lodging  House  Ass'n  v.  Boston, 

232. 
Moerlein  v.  Investment  Co.,  119. 
Moffatt  V.  Smith,  148. 
Moffat's  Ex'rs  v.  Strong,  301,  302. 
Moffitt  v.  Lytle,  350,  418. 
Mohawk  &  H.  R.  Co.  v.  Clute,  25. 
Mohr  V.  Tulip,  384. 
MoUett  V.  Brayne,  415. 
Monig's  Adm'x  v.  Phillips,  143. 
Monongahela  Bridge  Co.  v.  Kirk,  423, 
Monroe  v.  Trenholm,  396. 
Montag  V.  Linn,  429. 
Montague  v.  Railroad,  200. 

V.  Selb,  341. 
Monteith  v.  Finkbeiner,  142. 
Montello,  The,  6. 
Montgomery  v.  Beecher,  187. 

V.  Chadwick,  201. 

V.  Dorion,  388. 

V.  Sturdivant,  419. 

V.  Willis.  150,  100. 
Moodie  v    Reid,  318. 
Moody  V.  Fleming,  400. 

V.  Harper,  111. 


Moody  V.  King,  77,  86,  831 

V.  McCleUand,  305. 

V.  Mayor,  etc.,  142. 
Mooers  v.  Bunker,  344. 
Moomey  v.  Maas,  247. 
Moor  V.  Parker,  296. 
Moore.  In  re,  173,  242. 

V.  Boyd,  158. 

V.  Bunow,  481. 

V.  Calvert,  79. 

V.  Collishaw,  466. 

V.  Crawford,  205. 

V.  Dimond,  57,  316,  477. 

V.  Esty,  85,  88. 

V.  Frost.  111. 

V.  Hazleton,  435. 

V.  Horsley,  202. 

V.  Hunter,  219. 

V.  Jackson,  274. 

V.  Kime,  228. 

V.  Littel,  298. 

V.  Mayo:-,  etc.,  84,  104. 

v.  Miller,  133. 

V.  Peacock,  115. 

V.  Perry,  171. 

V.  Pierson,  216. 

V.  Rawson,  304. 

V.  Reaves,  122. 

V.  Rollins,  88. 

V.  Simonson,  00. 

V.  Sm.TW,  7. 

v.  Smead,  121,  454. 

v.  Smith,  10,  163. 

V.  Starks,  246. 

V.  Townshend,  03. 

V.  Wade,  188. 

V.  Walker,  206. 

V.  Weber,  138. 

V.  Wood,  143. 
Moores  v.  Moores,  317. 
Moore's  Appeal,  207. 
Moore's  Heirs  v.  Moore's  DevisecB,  277. 
Moran  v.  Hagerman,  190. 

V.  Lezotte,  425. 
Morecock  v.  Dickins,  225. 
Morehead  v.  Watkyns,  161. 
Morehouse  v.  Cotheal,  63. 
Moreland  v.  Page,  424. 
Morey  v.  Hoyt,  22. 

V.  Sohier,  474. 
Morgan  v.  Conn.  98. 

V.  Fisher,  270. 


CASES  CITED. 


653 


[The  figures  refer  to  paffos] 


Morgan  v.  C.ronon.  329. 

V  Hammett,  2;Jo. 
V.  Heudrew,  'J7. 
V.  Huduell,  343. 
V.  Kiug,  6. 

V.  Mason,  351. 
V.  Milniau,  3ia 
V.  Morgan,  48. 

V  Powers,  157. 

V.  Reading,  6,  423. 
V.  Smith,  445. 

V  SteU,  431. 
V.  Varick,  14. 

Morice  v.  Bishop  of  Durham,  267. 
Morley  v.  Pincombe,  146. 

V.  Rodgei-s,  145. 
Morling  v.  Brownson,  182. 
Moroney's  Appeal,  225. 
Morrice's  Case,  34(5. 
Morrill  v.  Kilner,  394. 
Morris  v.  Bolles,  330. 

V.  Endlong,  201. 

V.  Edgington,  300. 

V.  Kettle,  141. 

V.  McClary,  462. 

V.  Nixon,  136. 

V.  Ward,  123,  125. 
Morris'  Appeal,  15. 
Morris  Canal  &  Banking  Co.  v.  Brown, 

ITS. 
Morrison  v.  Bean,  249. 

V.  Berry,  13. 

V.  Brand,  190. 

V.  Brown,  219. 

V.  Chadwick,  141, 

T.  Funk,  225. 

V.  Kelly,  217. 

V,  Larkin,  491. 

V.  Marquardt,  356. 

V.  Morrison,  220,  429. 

T.  Thistle,  72. 
Morrow  v.  Jones,  187,  201. 
Morse  v.  Aldricb,  136. 

V.  Copeland,  166,  167,  358. 

V.  Curtis,  213. 

V.  Goddard,  138,  140,  145. 

V.  Martin,  316.^ 

V.  Mason,  477. 

V.  Smith,  235. 

V.  Whitcher.  197. 
Mortimer  v.  O' Reagan,  148. 


Morton  v.  Barrett,  255. 

V.  Xoble,  106. 

V.  Palmer,  163. 
Mosely  v.  Reily,  491. 
Moser  v.  Lower,  154. 
Moses  V.  Loomis,  152. 

V.  MIcou,  396. 
Mosher  v.  Mosher,  87,  93. 
Mosher  v.  Yost,  68. 
Moshier  v.  Meek,  192,  193. 

V.  Norton,  203. 

V.  Reding,  133. 

V.  Reynolds,  34. 
Moss  V.  Anderson,  429. 

V.  Gallimore,  132. 

V.  Moss,  267. 

V.  Scott,  459. 

V.  Sheldon,  419. 

V.  Warner,  121. 
Motley  V.  Harris,  204. 
Mott  V.  Hagerman,  154. 

V.  Maris,  240. 

V.  Palmer',  3,  12. 
Moulton  V.  Robinson,  155. 
Mounsey  v.  Ismay,  354. 
Moursund  v.  Preiss,  122. 
Movan  v.  Hays,  262. 
Mowry  v.  Bradley,  93. 
Moynihan  v.  Allyn,  142. 
Mudd  V.  Mulliean,  67. 
Muehlberger  v.  Schilling,   192. 
]Muir  V.  Berkshire,  203. 
:\Iulcahy  v.  Fenwick,  226. 
Muldrow  V.  Robison,  221. 
Mulford  V.  Brown,  230. 
Mulholland's  Estate,  In  re,  8. 
Mullany  v.  Mullany,  82. 
Mullen  V,  M'Kelvy,  475. 

V.  Strieker,  364. 
Muller  V.  Inderreiden,  123. 
Mullins  V.  Looke,  113. 
Mullock  V.  Souder,  475. 
Mulry  V.  Norton.  470. 
Mulvey  v.  Gibbons,  250. 
Mumford  v.  Brown,  135,   * 

V.  Whitney,  166. 
Munday  v.  O'Neil,  143. 
^lunn  V.  Worrall,  418. 
Munroe  v.  Ward,  458. 
Munson  v.  Berdan,  316. 

V.  Munson,  228. 


554 


CASES  CITED. 


[The  figm-es  refer  to  pages.] 


Murdock  v.  Chapman,  185. 

V.  Gifford,  13,  15,  20. 

V.  Ratcliff,  150. 
Murphy  v.  Barnard,  220,  228. 

V.  Galley,  189. 

y.  Copeland,  423. 

V.  Grouch,  123. 

V.  Doyle,  460. 

V.  Farwell,  237. 

V.  Murphy,  270,  482. 
Murray  v.  Cherrington,  134,  159. 

V.  Emmons,  131. 

V.  Hall,  333. 

V,  Hudson,  460. 

V.  Jones,  302. 

V.  Marshall,  208. 

V.  Porter,  209. 

V.  Sells,  117. 
Murrell  v.  Mathews,  49. 
Muse  V.  Hotel  Co.,  452. 
Musgrave  v.  Sherwood,  163. 
Musick  V.  Barney,  462. 
Mussey  v.  Pierre,  81. 
Mutton's  Case,  299,  500. 
Mutual  Benefit  Life  Ins.  Co.  v.  Brown, 
430. 

V.  Howell,  241. 
Mutual  Building  &  Loan  Ass'n  v.  Wy 

eth,  238. 
Mutual  Life  Ins.  Co.  of  New  York  v 
Dake.  221,  222. 

V.  Everett,  318. 

V.  Newell,  195. 

V.  Shipman,  185. 
"Muzzarelli  v.  Hulshizer,  441. 
Myers  v.  Boyd,  438. 

V.  Evans.  123. 

V.  Ford,  113,  120,  121. 

v.  Wright,  245. 
Myrover  v.  French,  435. 


N 

Naltner  v.  Tappey,  229. 
Nannock  v.  Horton,  317. 
Napier  v.  Howard,  301. 

V.  Napier,  317. 
Napper  v.  Sanders,  290.  292. 
Nash  V.  Springstead,  145. 
Nason  v.  Allen,  95. 


National  Bank  v.  North,  18. 
National  Oil-Refining  Co.  v.  Bush,  164. 
National  Union  Bank  v.  Segur,  137. 
National  Union  Bldg.  Ass'n  v.  Brewer, 

153,  434. 
Navassa  Guano  Co.  v.  Richardson,  184. 
Nave  V.  Berry,  143. 
Nazareth  Literary  &  Benevolent  Insti- 
tute V.  Lowe,  90. 
Neal  V.  Bellamy,  154. 

V.  Gregory,  452. 
Neale  v.  Mackenzie,  141. 
V.  Neale,    415. 
V.  Seeley,  372. 
Nebraska  v.  Iowa,  472. 
Needham  v.  Allison,  18. 
Neel  V.  McElhenny,  274,  275. 

V.  Neel,  64. 
Neely  v.  Butler,  76. 
Neilson  v.  Lagow,  261,  262,  264. 
Neligh  V.  Michenor,  184. 
Nelson  v.  Atkinson,  189. 
V.  Brown,  109. 
V.  Eachel,   152. 
V.  PInegar,  183. 
V.  Pomeroy,    110. 
V.  Russell,   284. 
V.  Thompson,  153. 
V.  Trigg,  467. 
Nelson's  Heirs  v.  Boyce,  225. 
Neves  v.  Scott,  258,  259. 
Nevil  v.  Saunders,  256. 
Nevil's  Case,  .46. 
Nevitt  V.  Bacon,  241. 
New  V.  Potts,  312. 

V.  Wheaton,  216,  217. 
Newburgh   &   G.   Turnpike   Koad   Co. 

V.  Miller,  879. 
Newcomb  v.  Harvey,  378. 

V.  Ramer,  155. 
Newcomen  v.   Goulson,  360. 
New  England  Jewelry  Co.  v.  Merriam, 

231. 
New   England   Loan  &  Trust   Co.   v, 

Spitler,  384. 
Newhall  v.  Bank,  90. 
V.  Pierce,   217. 
v.  Wheeler,  261,   262. 
New   Hampshire   Land   Co.  v.  Tllton, 

422. 
Newis  V.  Lark,  395. 


CASES   CITED. 


555 


[The  figures  refer  to  pages.] 


Newkerk  v.  Newkerk,  38,   173. 
Newman  v.  Anderton,  146. 

V.  Chapman,  218. 

V.  Newman,  109. 

V.     Ilutter,   144,    152. 

V.  Samuels,    438. 
New  Orleans  Canal  &  Banking  Co.  v. 

Hagan,  181. 
Newstead  v.  Searlos,  393. 
Newton  v.  Cubitt,  380. 

V.  Manwarring,  232. 
New  Vienna  Bank  v.  Johnson,  191. 
New  York,  C.  &  St  L.  R.  Co.  v.  Speel- 

man,   309. 
New  York  Real-Estate  &  Bldg.   Imp. 

Co.  V.  Motley,  153. 
New   York    Security   &   Trust   Co.   v. 
Saratoga  Gas  &  Electric  Light  Co., 
182. 
New  York  &  B.  Bridge,  in  re,  104. 
New  York  &  N.  E.  R.  Co.  v.  Board 

of  Railroad  Com'rs,  3G0. 
New  York  &  T.  Land  Co.  v.  Hyland, 

341. 
Xichol  V.  Levy,  171. 

V.  Thomas,  131. 
Nicholas  v.  Chamberlain,  352,  425. 
Nichols  V.  Baxter,  198. 

V.  Denny,    343. 

V.  Eaton,    41,   397. 

V.  Glover,    193. 

V.  Hooper,   326. 

V.  Levy,  41. 

V.  Luce,  351,  359,  360. 

V.  Otto,  250. 

V.  Reynolds,  464. 

V.  Williams,   156. 
Nicholson  v.  Bettle,  302. 

V.  Drennan,   58. 

V.  Walker,    212. 
Nickells  v.  Atherstone,  409. 
Nicklase  v.  Morrison,  66. 
Nicoll  V,.  Railroad  Co.,  176,  281,  282. 
Nicolls  V.  Sheffield,  299,  326. 
Nightingale  v.  BurreU,  48,  301. 

V.  Hidden,  78. 
Niles  V.  Nye,  91. 
Nitzell  V.  Paschall,  358. 
Niven  V.  Belknap,  451. 
Noble  V.  Bosworth,  20. 

V.  Hill,  341. 

V.  Sylvester,  13. 


Nocrosi  V.  Phillippi,  78. 
Nodine  v.  Greenfield,  246. 
Noel  V.  Henley,  321. 

V.  Jevon,   89. 
Noffts  V.  Koss,  91. 
Noke  V.  Awder,  451. 
Nokes  V.  Gibbon,  151. 

V.  Smith,   41. 
Nolan  V.  Grant,  217. 
Noonan  v.  Albany,  372. 
Norcross  v.  Griffiths,  5. 

V.  James,  351. 
Norman  v.  Wells,  136,  137. 
Norman's  Ex'x  v.   Cunningham,  78. 
Norris  v.  Harrison,  60. 

V.  Milner,   176. 

V.  Morrill,    162. 

V.  Teamsters'  Co.,  380. 

V.  Woods,  319. 
North  V.  Hammer,  460. 
North  V.  Philbrook,  36,  310. 

v.  Strafford,    145. 
Northcut  V.   Whipp,  86,   88. 
Northrop  v.  Wright,  460. 
Northrup's  Lessee  v.  Brehmer,  223. 
Norton,    Succession  of,   114. 

V.  Henry,  236. 

V.  Jackson,  447. 

V.  Norton,  261. 

V.  Yolentine,  372. 
Norwich  Fire  Ins.  Co.  v.  Boomer,  199. 
Nottes'  Appeal,  193. 
Nowlin  V.  Whipple,  167. 
Noyes  v.  Collins,  472. 

V.  Hall,  246. 

V.  Stone,  101. 
Nudd  V.  Hobbs,  354,  362. 
Null  V.  Howell,  92,  111. 

V.  Jones,  241. 
Nunnelly  v.  Iron  Co.,  351. 
Nunn's  Adm'rs  v.  Givhan's  Adm'r,  71. 
Nuttall  V.  Bracewell,  369. 
Nutter  v.  Russell,  305. 
Nycum  v.  McAllister,  127. 
Nye  V.  Alfter,  461. 

V.  Railroad  Co.,  104. 


o 


Oakford  v.  Robinson,  246. 

Oakland  Cemetery  Co.  v.  Bancroft,  13. 


656 


CASES  CITED. 


[The  figiu-es  refer  to  pases.] 


Oaldey  r.  Oakley,  94,  105. 
Oatman  v.  Goodrich.  82. 
Ober  V.  Brooks,  135. 
Oberholtzer's  Appeal,  220. 
Obert  V.  Obert,  342. 
O'Brien  y.  Barkley,  173. 

V.  Kusterer,  16. 
Obrien  v    Obrien,  G6. 
Oceau  Grove  v.  Asbury  Park,  4. 
O'Connor  v.  Kelly,  147. 
Odell  V.  Buck,  383,  384. 

V.  Odell,  329,  331. 
Odessa   Imp.    tS:   Irr.   Co.    v.   Dawson, 

171. 
O'Donnell  v.  Hitchcock,  11,  13. 
OEfut  V.  Cooper,  207. 
O'Gara  v.  Neylon,  111. 
Ogburn's  Estate,  In  re,  122. 
Ogden  V.  Ball,  443. 
V.  Chalfant,  242. 
V.  Jennings,  42(3. 
V.  Ogden,  78,  116. 
V.  Stock,  21,  23. 
Ogden's  Appeal,  296. 
Ogilvie  T.  Hill,  141. 
Ogle  V.  Turpin,  226. 
Ogontz  Land  &  Imp.  Co.  v.  Johnson, 

172. 
Ohio  &  M.  R.  Co.  V.  Weber,  3. 
Gland's  Case.  02. 
Olcott  V.  Gabert,  37. 
Ollphant  V.  Burns.  222,  4.50. 
Oliver  v.  Cunningham,  206. 
V.  Piatt,  269,  270,  275. 
V.  Pitman.  3.59. 
V.  Sanborn.  214. 
V,  Vance,  484. 
Olliffe  V.  Wells,  275. 
Olney  v.  Hull.  291. 
Olsen  V.  Webb,  142. 
Olson  V.  Huntamer,  472. 

V.  Merrill,  5. 
Omaba  &  St.  L.  Ry.  Co.  v.  Wabash, 

St.  L.  &  P.  Ry.  Co.,  185. 
Omelv.nny  v.  Jaggers.  369. 
Onderdonk  v.  Gray,  201. 
Ondis  V.  Bates,  103. 
Oneal  v.  Mead.  205. 
O'Nell  V.  Vanderburg,  455. 
O'NeiU  V.  Clark,  208. 
Ontario  Bank  v.  Mumford,  264. 
Onta.rio  State  Bank  v.  Gerry,  125. 
Onward  Building  Soc.  v.  Smithson,  454 


Oregon  Ry.  &  Nav.  Co.  v.  Mosler,  21. 

Orford  v.  Benton,  79. 

Original    Hartlepool   Collieries   Co.   r- 

Gibb,  370. 
Orland's  Case,  9. 
Orman  v.  Orman,  121. 
Ormerod  v.  Jlill  Co.,  369. 
Orme's  Case,  253. 
Orr  V.  Shraft,  116,  117,  122. 
Orrick  v.  Durham,  193. 
Ortman  v.  Chute,  106. 
Osborne  v.  Cabell,  208. 
v.  Humphrey,  140. 
V.  Ketcham,  182. 
Osborne  &  Co.  v.  Schoonmaker,  121. 
Osgood  V.  Franklin,  308,  31L 
v.  Howard,  19. 
V.  Osgood,  191. 
Otis  V.  Browning,  42a 
V.  Mcl^^llan,  324, 
V.  Parshley,  92. 
V.  Prince,  173. 
V.  Smith,  474. 
V.  Spencer,  214,  394. 
V.  Thompson,  154. 
Ott's  Ex'x  V.  King,  191. 
Ottumwa  Lodge,  etc.,  v.  T^wls,  .366. 
Ottumwa  Woolen  Mill  Co.  v.  Hawley,. 

12 
Oulds  V.  Sansom,  387. 
Overand  v.  ;\Ienczer,  466. 
Overdeer  v.  Lewis,  165. 
Overfield  v.  Christie,  467. 
Overman  v.  Sasser,  20. 
Overman's  Appeal,  396. 
Overseers  of  l^or  of  City  of  Boston  r. 

Sears,  37. 
Overton  v.  I^acy,  .333. 
Owen  V.  Association,  182. 
V.  Evans,  211. 
V.  Field,  177,  3.58. 
V.  Hyde,  64. 
V.  Peacock,  111. 
Owlngs  V.  Emery.  64. 
Ownes  V.  Ownes,  260. 
Oxley,  Ex  parte,  396. 


Pacific  Gas  Imp.  Co.  v.  EUert.  5. 
Pacific  Nat.  Bank  v.  Windram,  396. 
Packard  v.  Ames,  170. 


CASES  CITED. 


557 


[The  figures  refer  to  pages.] 


Packard  v.  Railway  Co.,  158. 

V.  Ryder,  5. 
Packer  v.  Wyndbam,  71. 
Paddock  v.  Potter,  185,  433. 
Padelford  v.  Padelford,  61,  64. 
Padgett  V.  Cleveland,  21. 
Page  V.  Culver,  148. 

V.  Wariug,  217. 

V.  Webster,  341. 
Paice    V.    Archbishop    of    Canterbury, 

2G0. 
Paige  V.  Paige,  2G8,  340. 
Paine  v.  French,  213. 

V.  Lock  Co.,  14G. 

V.  Mason,  220. 

V.  Woods,  423. 
Paine's  Case,  77. 
Palmer  v.  Bank,  329. 

V.  Culbertson,  481. 

V.  Fletcher,  3G4. 

v.  Forbes,  14. 

V.  Hawes,  120,  122. 

V.  Palmer,  213. 

V.  Williams,  215,  427. 

V.  Young,  341. 
Palmeter  v.  Carey,  241. 
Pancake  v.  Cauffman,  187,  189. 
Pancoast  v.  Pancoast.  339. 
Panton  v.  Holland,  305. 
Papillon  V.  Voice,  297. 
Paradine  v.  Jane,  141. 
Pardee  v.  Lindley,  315. 

V.  Treat,  208. 

v.  Van  Anken,  234. 
Pardo  v.  Bittorf,  121. 
Parfitt  V.  Member,  327. 
Park  V.  Baker,  16. 
Parke  v   Neely,  21G. 
Parkenham's  Case,  137. 
Parker  v.  Barker,  451. 

V.  Baxter,  494. 

V.  Beasley.  230. 

V.  Carter.  75. 

V.  Cole,  474. 

V.  Constable,  157. 

V.  Dean,  125. 

V.  Foote,  3G4. 

V.  Griswold.  142.    • 

V.  Hayden,  110. 

V.  Leach,  288. 

V.  Lincoln,  182. 

V.  Parker,  101,  285,  302. 


Parker  v.  People,  374. 

V.  Railroad  Co.,  185. 

V.  Randolph,  210. 

V.  Welsted,  3(30. 
Parkes  v.  White,  321. 
Parkhurst  v.  Hosford,  214. 
Parkins  v.  Coxe,  G4. 
I'arkist  v.  Alexander,  219. 
Parkman  v.  Bowdoin,  49. 
Parks  V.  Bi.shop,  361. 

V.  City  of  Boston,  153. 

V.  Newburyport,  372. 
Parmenter  v.  Webber,  148. 
Parret  v.  Shaubhut,  219. 
Parrish  v.  Parrish,  93,  98,  99. 
Pan-ott  V.  Barney,  139. 

V.  Edmondson,  315. 
Parsons  v.  Copeland,  15,  19. 

V.  Freeman,  204. 

V.  Johnson,  3.59, 

V.  Parsons,  481. 

V.  Welles,  233. 

V.  Winslow,  Gl. 
Partee  v.  Stewart,  117. 
Parton  v.  Allison,  95,  99. 
Partridge  v.  Cavender,  397. 

V.  Dorsey,  49. 

V.  GUbert,  367,  3G8. 

V.  Scott.  3G5. 
Paske  V.  Haselfoot,  313. 
Passumpsic   Sav.   Bank  v.  First  Nat. 

Bank,  214. 
Patch  V.  Keeler.  98. 
Patrick  v.  Sherwood,  60. 
Patridge  v.  Cavender.  397. 
Patterson  v.  Arthurs,  446. 

V.  Graham,  167. 

V.  Park,  159. 

V.  Patterson,  106. 

V.  Trust  Co.,  185. 
Pattison  v.  Shaw,  247. 
Patton  V.  Eberhart,  206. 
Patty  V.  Pease,  229. 
Paul  V.  Carver,  422. 

V.  Wltman,  449. 
Paxson  V.  Lefferts,  446. 
Paxton  V.  Kennedy,  146. 
Payne  v.  Atterbury,  194. 

V.  Avery,  192. 

v.  Becker,  95. 

V.  Irvin,  142. 

V.  James,  139. 


658 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Payne  v.  Lott,  402. 

V.  Payne,  77,  78,  110,  487. 
V.  Rogers,  142. 
Pay's  Case,  301. 
Pea  V.  Pea,  20. 
Peabody  v.  Hewett,  41G. 
V.  Minot,  343. 
V.  Patten,  91. 
Peacock  v.  Eastland,  256. 

V.  Purvis,  8,  14G. 
Pearce  v.  Turner,  134. 
Pearks  v.  Moseley,  325. 
Pearsall  v.  Post,  354. 
Pearson,  In  re,  396. 
V.  Howey,  84. 
V.  Pearson,  83. 
Pease  v.  Egan,  203. 

V.  Kelly,  192. 
Peay  v.  Peay.  88. 
Peeare  v.  Choteau's  Adm'r,  442. 
Pechaud  v.  Rinquet,  241, 
Peck  V.  Conway,  351. 
V.  HerrlngtoD,  372. 
V.  Ingersoll,  149. 
V.  Jones,  448. 
V.  Ledwidge,  140. 
V.  Lockwood,  376. 
V.  Manufacturing  Co.,  139. 
V.  Walton,  407. 
Peckham  v.  Hadwan,  90.  92. 
Peirce  v.  Goddard,  10,  23. 
Pelan  v.  De  Bevard,  116. 
I'ellizzarro  v.  Reppert,  109. 
Pells  V.  Brown,  302. 
Pelton  V.  Farmin,  248. 
Pence  v.  Arbuckle,  428. 
Pendill  v.  Maas,  143. 

V.  Mining  Co.,  153. 
Pendleton  v.  Dyett,  141. 

V.  Vandevier,   59. 
Peninsular  Iron  Co.  v.  Eells,  190. 
Peninsular  Stove  Co.  v.  Roark,  125. 
Penn   v.   Divellin,   145. 
Penn  v.  Ott,  184. 
Penn  v.  Preston,  135. 
Pennant's  Case,  175. 
Penniman  v.  Cole,  394. 

V.  French,  8. 
Pennington's  Ex'rs  v.  Yell,  95. 
Pennsylvania  R.  Co.  v.  I'arke,  179. 
Penny  v.  Corwithe,  428. 
Pennybecker  v.  McDougal,  13. 


Penry  v.  Richards,  421. 
Pentland  v.  Keep,  353,  359. 
People  V.  Appraisers,   5. 

V.  Board   of   Education   of  Grand 

Rapids,  34. 
V.  Campbell,  492. 
V.  Canal  Appraisers,  423, 
.V.  Conklin,  388. 
V,  Darling,   159. 
V,  Elk  River  Mill  &  Lumber  Co., 

6,   369. 
V.  Ferry    Co.,   400. 
V.  McClay,  113. 
V.  Organ,    428. 
V.  Piatt,  5. 
V.  Plumsted,    124. 
V,  Robertson,   148. 
V.  Tibbetts,   6. 
V.  Van  Rensselaer,  459. 
V.  White,   178. 
People's  Bank  v.  Mitchell,  152. 
People's  Ice  Co.  v.  The  Excelsior,  6. 
Peoria  &  P.  U.  Ry.   Co,  v.  Tamplin, 

461. 
Pepper  v.  Pepper,  340. 

v.  Thomas,  108. 
Pepper's  Will,  318. 
Perkins  v.  Nichols,  267. 
V.  Quigley,  118. 
V.  Swank,  17. 
Perley  v.  Chandler,  362. 
Pernam  v.  Wead,  359,  425. 
Perrin  v.  Blake,  290. 
V.  Carey,    277. 
V.  Garlield,  349,  353. 
V.  Lepper,  148. 
Perrine  v.  Cheeseman,  430. 
Perrot  v.  Perrot,  66. 
Perry  v.  Ashby,  127. 
V.  Carr,  17,  157. 
V.  Grant,    193. 
V.  Hale,    475. 
V.  Hamilton,  66. 
V.  Kline,  49. 
V.  Perryman,  108. 
V.  Price,  406,  411. 
V.  Ross,  124. 
V,  Terrel,  9,  61. 
Peifsons  V.  Persons,  268. 
Peter  v.  Beverly,  308,  315. 
V.  Kendal,  879. 


CASES   CITED. 


55  U 


[The  figures  refer  to  pages.] 


Peters  v.  Bridge  Co.,  210. 

V.  Jones,  468. 
Peterson  v.  Clark,  304. 
Petro  V.  Cassiday,  175. 
Petry  v.  Ambroslier,  193. 
Pettee  v.  Hawes,  418. 
Pettibone  v.  Edwards,  245. 
PettingiU  v.  Devin,  223. 

V.  Hubbell,  245. 
Petty  V.  Barrett,  118. 

V.  Malier,  95,  485. 

V.  Molier,  75. 
Peugh  V.  Davis,  200,  206. 
Pewaukee  Milling  Co.  v.  Howitt,  136. 
Peyton  v.  Bury,  173. 

V.  Jeffries,  98. 
Pfanner  v.  Sturmer,  9. 
Pfeiffer  v.  Brown,  372. 
Pharis   v.    Leachman,    94. 
Phelan  v.  Boyd,  21. 

V.  Brady,  216. 

V.  De  Martin,  206. 

V.  Fitzpatrick,  188,  235. 
Phelan's  Estate,  In  re,  121. 
Phelps  V.  Chesson,   174. 

V.  Fockler,  226. 

V.  Nowlen,  371. 

V.  Phelps.  89,  282,  284. 

V.  Randolph,   142. 

V.  Rooney,  122. 
Phene  v.  Popplewell,  409. 
Phene's  Trusts,  In  re,  313. 
Phifer  v.  Barnhart,  223. 
Philadelphia  v.  Girard's  Heirs,  328. 
Philadelphia  Trust,   etc.,   Co.   v.   Lip- 

pincott,  315. 
Philbrook  v.  Delano,  192,  266. 
Philips  V.  Bank,  210,  211. 

V.  Leavitt,   234. 
Philleo  V.   Smalley,   122. 
Phillips  V.   Brown,   309. 

V.  Clark,   452. 

V.  Costley,  216. 

V.  Covert,  157. 

V.  Ehrmanu,  142. 

V.  Ferguson,   173. 

V.  Green,  382. 

V.  Harrow,  397. 

V.  Library  Co.,  142. 

V.  Roquemore,   225. 

V.  Sherman,  404. 

V.  Stauch,  123. 

V.  Stevens,  153. 


Phinizy  v.  Clark,  209. 
Phipps  V.  Acton,  119. 

v.  Ennlsmore,  396. 
Pibus  V.  Mitford,  297. 
Picard  v.  Montross,  487. 
Pickard  v.  Collins,  142. 
Picken  v.  Matthews,  325. 
Pickens  v.  Webster,  7. 
Pickens'  Estate,  In  re,  481. 
Pickens'  Ex'rs  v.  Kniseley,  73. 
Pickering  v.  Pickering,  342. 
Plckwell  V.  Spencer,  38. 
Pierce  v.  Brown,  438. 

V.  Chace,  338. 

V.  Drew,  3G2. 

V.  Dyer,  366,  367. 

V.  Goddard,  23. 

V.  Hakes,  78. 

V.  Indseth,  429. 
Pierson  v.  Armstrong,  400. 

V.  Lane,  53. 
Pifer  V.  Ward,  90. 
Piggot  V.  Mason,  135,  13G. 

V.  Penrice,  318. 
Pike  V.  Gleason,  232. 

V.  Robinson,  463. 
Pike's  Will,  In  re,  384. 
Pile  V.  Pedrick,  367. 
Pilldngton  v.  Boughey,  267. 
PiUars  v.  McConnell,  270. 
Pillow  V.  Roberts,  429. 
Pillsbuiy  V.  Mitchell,  135. 
Pinchain  v.  Collard,  192. 
Pinckney  v.  Burrage,  457. 
Pine  V.  Leicester,  378. 
Pinkerton  v.  Tumlin,  120. 
Pinkiun  v.  City  of  Eau  Claire,  176. 
Pinnington  v.  Galland,  360. 
Pinuock  V.  Clough,'  263. 
Piper  V.  Johnston,  123. 
Pit  V.  Chick,  374. 
Pittman  v.  Sofley,  214. 
Pitts  V.  Lancaster  Mills.  309. 
Pittsburg  Consol.  Coal  Co.  v.  Green- 
lee, 149. 
Pitzman  v.  Boyce,  168. 
Pixley  V.  Clark,  371. 

V.  Hugging,  225. 
Pizzala  v.  Campbell,  94. 
Planters'  Bank  v.  Davis,  79. 
Plate  V.  Koehler,  125. 
Platner  v.  Sherwood,  85. 
Plato  V.  Roe,  187. 


560 


CASES  CITED. 


[The  figures  refer  tc  pages.] 


riatt  T.  Squire,  213,  234. 
Pleasant  v.  Benson,  1G2. 
Plimpton  r.  Insurance  Co.,  19S. 
Ploen  V,  Staff,  135. 
Plucbe  V.  Jones,  457. 
IMumer  v.  Guthrie,  188. 
V.  Plumer,  17. 
V.  Robertson,  217. 
Plunket  V.  Holmes,  301. 
Poe  V.  Paxton's  Heirs,  193. 
PofeTie  V.  Clark,  244,  245. 
Poignand  v.  Smith,  195,  4G8. 
Pointlexter  v.  Blackburn,  9,  G2. 
Pollard  V.  Barnes,  352. 
V.  Cocke,  223. 
V.  Hagan,  5. 
V.  ^Merrill,  72. 
V.  Shaaffer,  65, 
V,  Shaffer,  139. 
V.  Slaughter,  88. 
Polley  V.  Johnsou,  8. 
Pollock  V.  Maison,  240. 

V.  Speidel.  48,  49. 
Polyblauk  v.  Hawkins,  73. 
Pomeroy  v.  Pomeroy,  105. 
Pomfret  v.  Perring,  317. 

V.  PJcroft,  35G. 
Pomroy  v.  Stevens,  216. 
Pond  V   Bird,  474. 

V.  Eddy,  211. 
Ponder  v.  Cheeves,  462. 
Pool  V.  Blakie,  78,  82. 
Poole  V.  Beutley,  131. 
Poole's  Case,  16. 
Poor  V.  Horton,  84. 
V.  McClure,  5. 
Pope  V.  Hanmer,  459. 
V.  Harkins,  143. 
V.  Mead,  05. 
V.  Pope,  215. 
Poppers  V.  Meaglier,  130,  150. 
Popplewell  V.  Hodkinson,  37L. 
Porch  V.  Fries,  83. 
Porter  v.  Bank,  72. 
V.  Fox,  323. 
V.  Greene,  224. 
V.  Hill,  334,  343. 
V.  Lazear,  104. 
V.  Merrill,  1G3. 
V.  Thomas,  316. 
V.  Wheeler,  452. 
Portington's  Case,  51. 


Posey  V.  Cook,  255. 
Post  V.  Hover,  324. 

V.  Kearney,  148. 

V.  Pearsall,  .''.50. 

V.  Velter,  135. 
Postal  Tel.   Cable  Co.  r.  W.   U.  TeL 
,     Co.,  13G. 

Posten  V.  Miller,  233,  235. 
Postlethwaite  v.  Payne,  370. 
Potter  v.  Couch,  311,  395. 

V.  Cromwell,  10. 

V.  McDoweU,  393. 

v.  Thornton,  389. 

V.  Wheeler,  93. 
Potts  V.  Davenport,  116,  119,  121. 

v.  Gilbert,  4G2,  467. 

V.  Plaisted,  230. 
Potts'  Appeal,  49. 

Pottstown  Gas  Co.  v.  Murphy,  371. 
Potwin  V.  Blasher,  447. 
Poull  V.  Mockley,  355. 
Powcey  V.  Bowen,  319. 
Powell  V.  Bergner,  19. 

V.  Gossom,  75.  76,  78. 

V.  Manufacturing  Co.,  97,  107. 

V.  Patison,   242. 

V.  Rich,  8. 
Powell's  Trusts,  In  re,  329. 
Powers  V.  Harlow,  360. 

V.  Insurance  Co.,  198. 

V.  Lumber  Co.,  234. 

V.  McFarran,  224. 

V.  Sample,  113. 
Powles  V.  Jordan,  321. 
Povvley  V.  Walker,  140. 
Prater  v.  Hoover,  79. 
Pratt  V.  Colt,  274. 

V.  Curtis,  393. 

V.  Felton,  109. 

V.  Leadbetter.  290. 

V.  Levan,  149. 

V.  Sweetser,  357. 
Pratt's  Lessee  v.  Flamer,  48. 
Preiss  v.  Parker,  367. 
Prentice  v.  Wilson,  156. 
Preschbaker  v.  Fearaan,  189. 
Prescott  V.  Boucher,  146 

v.  Elm,  161. 

V.  Nevers,  458. 

V.  Tnieman,  445. 

V.  White,  143,  358,  309,  373. 


CASES  CITED. 


561 


[The  figures  refer  to  pages.] 


President,  etc.,  of  City  of  Cincinnati  v. 

White,  303. 
President,  etc.,  of  Lincoln  &  K.  Banli 

V.  Drummond,  175. 
Pies  di'n  ,  etc.,  of  Ntwburgli  &  Cochee- 

tou  Turnpike  Road  v.  Miller,  380. 
Preston  v.  Bowmar,  424. 

V.  Carr,  306. 

V.  Case,  211. 

V.  Robinson,  336. 
Prewit  V.  Wilson,  394. 
Prewitt  V.  Ashford,  454. 
Price  V.  Brown,  460. 

V.  Cutts.  191. 

V.  Hall,  293,  341. 

V.  Haynes,  439. 

V.  Hobbs.  84,  97. 

T.  Jenkins,  394. 

T.  Norwood,  175. 

V.  Pickett,  9,  60,  62. 

V.  Price's  Heirs,  25. 

V.  Railroad  Co.,  436. 

V.  Wood,  182. 
Price's  Appeal,  474. 
Prichard  v.  James,  53. 
Prickett's  Lessee  v.  Parker,  479. 
Priddy  v.  Griffith.  88. 
Priest  V.  Cummings,  103. 

V.  Lackey,  473. 

V.  Wheelock.  229. 
Priestley  v.  Holgate,  173. 
Prince  v.  Case,  167. 
Prindle  v.  Anderson,  162. 
Prlngle  v.  Dunn,  213,  215,  219. 
Pritchard  v.  Palmer,  439. 
Probett  V.  Jenkinson,  421. 
Proctor  V.  Blgelow,  111. 

V.  Bishop  of  Bath  &  Wells,  325. 

V.  Hodgson,  360. 

V.  Machine  Co.,  453. 
Prodgers  v.  Langham,  393. 
Proffltt'V.  Henderson,  62. 
Proprietors  of  Charles  River  Bridge  v. 
Proprietors  of  Warren  Bridge,  380, 
402. 
Proprietors     of     Church     In     Brattle 

Square  v.  Grant.  283,  2S4,  292.  325. 
Proprietors  of  Enfield  v.  Permit,  37. 
Proprietors  of  Liverpool  Wharf  v.  Pres- 

cott,  453. 
Proprietors  of  Mill  Dam  Foundry  v. 
Hovey,  430. 

REAL  PROP.— 86 


Proprietors  of  Town  of  Shapleigh  y. 

Pilsbury,  255. 
Proprietors  of  Township  No.  6  v.  Mc- 

Farland,  458. 
Prospect  Park  &  C.  I.  R.  Co.  y.  Coney 

Island  &  B.  R.  Co.,  489. 
Prosser  v.  Wapello,  380. 
I'rout  V.  Roby,  72. 

V.  Wiley,  383. 
Pruitt  V.  Holland,  53. 
Prutsman  v.  Baker,  433,  434. 
Pry  V.  Pry,  219. 
Puckett  V.  McDanlel,  340,  463. 
Pugh  V.  Arton,  22. 

V.  Bell,  lOG. 
Pugsley  V.  Aikln,  160. 
Pullen  V.  Pullen,  104. 

V.  Rianhard.  255. 
Pulling's  Estate,  In  re.  105. 
Purdy  V.  Huntington,  233. 
Purefoy  v.  Rogers,  285. 
Putnam  v.  Putnam,  477. 

V.  Ritchie,  335. 
Putney  v.  Dresser,  334. 
Putzel  V.  Van  Brunt,  420. 
Pyer  v.  Carter,  852. 
Pyle  V.  Pennock,  15. 
Pynchon  v.  Stearns,  63. 
Pyne  v.  Dor,  62. 


Q 


Queen's  College  v.  Hallett,  145. 
Quinby  v.  Paper  Co.,  13. 
Qulnnerly  v.  Qulnnerly,  222. 
Quinn's  Estate,  In  re,  72. 


R 

Rabb  v.  Grlflin,  75. 
Raby  v.  Reeves,  453. 
Race  v.  Ward,  373. 
Ragor  V.  McKay,  145. 
Ragsdale  v.  O  Day,  85,  89. 
Railroad  Co.  v.  Carr,  369. 
Ralls  V.  Hughes,  111. 
Ralph,  Ex  parte,  326. 
Ralston  v.  Ralston,  101. 
Rambo  v.  BpII.  94. 
Ramboz  v.  S  to  well,  455. 


562 


CASES   CITEC. 

[The  figures  refer  to  pages.] 


Ramsey  v.  Glenny,  4(i4. 

V.  Merriam,  250. 
Randall  v.  Josselyu,  oUl. 
V.  McLaughlin.  3o2. 
V.  I'hillips,    2GU. 
Randolph  v.  Doss,  85. 
Rands  V,  Kendall,  84,  184. 
Rank  V.  Hanna,  105. 
Rankin  v.  Black,  330. 

V.  Miller,  223. 
Ranney  v.  Hardy,  217. 
Ratcliffe  V.  Marrs,  419. 

V.  Mason,  85,  93. 
Rausch,  In  re,  107. 
V.  Rausch,  397. 
Rautenbusch  v.   Donaldson,  78. 
Rawley  v.  Holland,  299. 
Rawlings  v.  Adams,  73,  78,  105, 

V.  Lowndes,  85. 
Rawlins  v.  Buttel,  103. 
Rawson  V.  School  Dist.  170. 
Ray  v.  Alexander,  53. 
V.  Johnson,  140. 
T.  Pearce,  240. 
V.  Pung,    105. 
V.  Scripture,  244. 
Raybold  v.  Raybold,  261. 
Raymond  v.  Glover,  433. 
V.  Hodgson,    148. 
V.  Holden,  455. 
V.  Palmer,  195. 
V.  Raymond,  443. 
V.  White,  19. 
Rayner  v.  Lee,  95,  491. 
Raynor  v.  Wilson,  434. 
Razor  V.  Razor,  174. 
Read  v.  Stedman,  280. 
Reade  v.  Johnson,  378. 
V.  Livingstone,    393. 
Reading  v.    Finrey,   491. 
Ready  v.  Kearsley,  261. 
Reardon  v.  Murphy,  172. 
Reasoner  v.  Edmundson,  444. 
Reaume  v.  Chambers,  37.  75. 
Reckhow  V.  Schanck,  163. 
Rector  v.  Waugh,  37,  343. 
Rector,  etc.,  of  King's  Chapel  v 

ham,  176. 
Redden  v.  Miller,  215. 
Rede  v.  Farr,  174. 
Redlon  V.  Barker,  13. 
Redwine  v.  Brown,  135. 
Reece  v.  Miller,  5. 


Reed  v.  Farr,  453. 

V.  Inhabitants  of  Northfleld,  362. 
v.  Kemp,  219,  437. 
V.  Kennedy,   92. 
V.  Reed,  79,  202,  474. 
V.  Shepley,  89. 
V.  Whitney,  106. 
Reeder  v.  Barr,  403. 
V.  Purdy,  165. 
V.  Sayre,  9. 
Reed's  Ex'rs  v.  Reed,  64. 
Reel  V.  Elder,  103. 
Rees  V.  Lowy,  153. 

v.  McDaniel,  472. 
Reese  v.  Kinkead,  192. 
V,  Smith,    451. 
V.  Waters,  8L 
100.    Reeve  v.  Long,  290. 

Reeves  v.  McComeskey,  139,   153. 
Reg.  V.  Inhabitants  of  Cluworth,  870. 

V.  Pratt,  362. 
Regan  v.  Light  Co.,  359. 
Reichenbach  v.  Railway  Co.,  171. 
Reichenbaeker  v.  Pahmeyer,  142. 
Reid  V.  Parsons,  151. 
Reiff  V.  Horst,  107. 

V.  Reiff,  9,  62. 
Reigard  v.  McNeil,  188. 
Reilly  v.  Phillips,  249. 
Reimer  v.  Stuber,  353. 
Reinback  v.  Walter,  119. 
Reinhart  v.  Lantz,  42. 
Reinoehl  v.  Shirk,  48,  302. 
Reitenbaugh  v.  Ludwick,  200. 
Reitzel  v.  Eckard,  92. 
Remington  Paper  Co.  v.  O'Dougherty, 

239. 
Rempt  V.  Geyer,  189. 
Renals  v.  Cowllshaw,  351. 
Rennie's  Estate,  In  re,  61. 
Rennyson's  Appeal,  364. 
Renoud  v.  Daskam,  135. 
Renshaw  v.  Bean,  363. 
Renwick  v.  Wheeler,  228. 
Renziehausen  v.  Keyser,  261. 
Rerick  v.  Kern,  168. 
Pel-    Retherick  v.  Chappel,  327. 
Reusens  v.  Lawson,  461. 
Rex  V.  Burchell,  395. 

V.  Inhabitants  of  Aldborough,  147. 
V.  Inhabitants  of  Leake,  362. 
V.  O'tley,  13. 
Reybm-n  v.  Wallace,  60. 


CASES  CITED. 


563 


[The  figures  reiet  to  pages.] 


Reynolds  v.  Black,  215. 
V.  Crispin,  287. 
V.  Harris,  490, 
V.  Hull,  lis. 
V.  McCurry,  95. 
V.  New  Yorli  Security  &  Trust  Oo., 

12. 
V.  Reynolds,  92,  103. 
V.  Webster,  225. 
V.  Wilmeth,  342. 
Rliea  V.  Meriditti,  104. 
Khett  V.  Mason's  Ex'r,  262. 
Kliines  v.  Baird,  188. 
Ithiodes  V.  McOormacli;,  122,  366. 
V.  McCoruaiclx,  120. 
V.  Otis,  6,  168. 
V.  Whitehead,  293. 
V.  Williams,  117. 
Ricard  v.  Williams,  352. 
R'ce  V.  Adams,  15. 
V.  Nelson,  111. 
V.  Railroad  Co.,  176. 
V.  Railroad  Corp.,  171. 
V.  Rice,  270. 
Rich  V.  Bolton,  100. 
V.  Braxton,  493. 
V.  Cockell,  387. 
V.  Gilkey,  477. 
V.  Hobson,  154. 
y.  ZeUsdorlf,  418. 
Richard  v.  Bent,  445. 
V.  Hui)p,  353,  357. 
Richards  v.  Chace,  123. 
V.  Miller,   474. 
V.  Richards,  110,  171,  480. 
V.  Rose,  3G5. 
v.  Thompson,  247. 
Richardson  v.  Copeland,  14. 
V.  Gifford,  132. 
V.  Harms,  99. 
V.  Hockenhall,  231. 
V.  Langridge,  159,  160. 
V.  Noyes,  302. 
V.  Pate,  386. 
V.  Richardson,  302,  341. 
V.  Sharpe,  317. 
V.  Skoltield,  91,  105. 
V.  Wheatland,  290,  291,  298. 
V.  York,  57. 
Richeson  v.  Crawford,  204. 
Richmond  v.  Voorhees,  437. 
Rickard  v.  Rickard,  345,  464. 
Rickert  v.  Madeira,  212. 


Ricketts  v.  Loftus,  313. 
V.  Railroad  Co.,  309. 
Rico  Reduction  &  Mining  Co.  v.  Mus- 

grave,  342. 
Riddell  v.  Riddell,  93. 
Rider  v.  Bagley,  242. 
Ridler,  In  re,  393. 
Ridley,  In  re,  326. 
Riehl  V.  Bingenheimer,  123. 
Riehle  v.  Heuliugs,  357. 
Rieman  v.  Wagner,  466. 
Riggin  V.  Love,  419. 
Riggs  V.  Sally,  42. 
Right  V.  Bucknell,  455. 

V.  Darby,  161. 
Righter  v.  Forrester,  225,  297. 
Rigler  v.  Cloud,  78. 
Rigney  v.  Water  Co.,  369. 
Rigor  V.  Frye,  464. 
Riley  v.  Water  Power  Co.,  7. 
Riley's  Adm'r  v.  Riley,  71. 
Ring  V.  Biu^,  123,  124. 
V.  Hardwick,  325. 
Ringgold  V.  Biyan,  216. 
Ripley  v.  Waterworth,  68. 
Risien  v.  Brown,  168. 
Rising  V.  Stannard,  157. 
Risk  V.  Hoffman,  207. 
Ritchie  v.  Ege,  489. 

V.  Railway  Co.,  171. 
Ritger  v.  Parker,  358. 
Rittgers  v.  Rittgers,  262. 
River  v.  Withers,  6. 
Rivers  v.  Adams,  374. 

V.  Gooding,  110. 
Roach  V.  Davidson,  94. 

V.  Wadham,  312,  316. 
Roan  V.  Holmes,  91. 
Roane  v.  Baker,  225. 
Robarts  v.  Haley,  268. 
Robbins,  In  re,  422. 

V.  Eaton,  382. 

v.  Kinzie,  107. 

V.  Robbins,  90,  104. 
Roberts  v.  Cambridge,  489. 

V.  Fleming,  202. 

V.  Greer,  114. 

V.  Halstead,  227. 

V.  Jackson,  152,  435. 

V.  Railroad  Co.,   454. 

V.  Stevens,  896. 

V.  Thorn,   341. 

v.  Whiting,  59,  SO. 


5Gi 


CASES  CITED. 


[The  figures  refer  to  papres.] 


RoDertson  v.  Biddell,  144. 
V.  Corsett,  lt>. 
V.  Hiiy.  428. 
V.  Norris.  71,  80. 
V.  Stevens,  79. 
V.  Wilson,  3U5. 
V.  Wood,  :i74. 
Robeson  v.  Pitt(>uger,  364. 
Robie  V.  Cbapmau,  78. 
Robinson  v.  Baker,  115. 
V.  Bates,  106. 
V.  Beard,    134. 
V.  Buck,  82. 
V.  Ezzell.  7. 
V.  Fife,   237,  238. 
V.  Leach,  125. 
V.  Litton,  304. 
V.  Miller,  92,  94,  99. 
V.  Mining  Co.,  144. 
V.  Robinson,   57. 
V.  Schley,  473. 
V.  Swearingen,  121. 
V.  Wood,    302. 
Robinson  Bank  v.  Miller,  206. 
Robinson's  Estate,  In  re,  53. 
Robison  v.  Codman,  89,  334. 
Rochford  v.   Hackman,  396. 
Rochon  V.  Lecatt,  81. 
Rockingham  v.  Fenrice,  60. 
Rockwell  V.  Hobby,   192. 
.Rodgers  v.  Burchard.  223,  224. 
V.  Rodgers'  Adm'r,  487. 
V.  Wallace,  307. 
"Roe  V.  Archbishop  of  York,  409. 
V.  Ashburner,  132. 
V.  Galliers,  396. 
V.  Grew,    297. 
V,  Harrison,  152,  396. 
V.  Jeffery,  327. 
V,  Lees,  160. 
V.  Tranmer,    254. 
V.  Ward,  130. 
Roet  V.  Somerville,  62. 
Regan  V.  Walker,  175,  186,  188,  2(^7. 
Rogers  V.  Brokaw,  12,  13,  21. 
V.  Brown,  158. 
V.  Cruger,    431. 
V.  Donnellan,  267. 
V.  Fire  Co.,  299,  411. 
V.  Gillinger,  14. 
V.  Grigg,  146. 
V.  Herron,  235. 


Rogers  v.  Ilillhouse.  427. 
V.  Humphreys,  132. 
V,  Johnson,  468,  487. 
V.  Jones,   216. 
V.  Moore,  57,  59. 
V.  Rawlings,  404. 
V.  Rogers,  303. 
V.  Smith,  474. 
V.  Tucker,  226. 
V.  Walker,  384. 
Roggenkamp  v.  itoggenkarap,  269. 
Rohn  V.  Harris,  289,  345. 
Rolfe  V.  Harris,  151. 
Roome  v.  Phillips,  2S9. 
Rooney  v.  Crary,  2U0. 
Roosevelt  v.  Bank,  230. 

V.  Thurman,  395. 
Roper  V.  Lloyd,  141. 
Rose  V.  Chandler,  247. 
V.  Daniel,  469. 
V.  Davis,  144. 
V.  Hawley,  174. 
V.  Sanderson,  80. 
V.  W^atson,  194. 
Roseboom  v.  Van  Vechten,  55. 
Rosenblat  v.  Perkins,  159. 
Rosenthal  v.  Mayuugh,  110. 
Roseville  Alta  Mia.  Co.  v.  Iowa  Gulch 

Min.  Co.,  13. 
Rosher,  In  re,  395. 
Ross  V.  Adams,  407. 
V.  Drake,  288. 
V.  Dysart,   138. 
v.  Gill,  131. 
v.  Overton,  153. 
V.  Porter,  121. 
V.  Whitson,   192. 
V.  Wilson,  93. 
Rosse's  Case,  67. 
Rossetter  v.  Simmons,  473. 
Rosslter  v.  Cossit,  90. 
Rothschild  v.  Railway  Co.,  241. 
Rothwell  V.  Dewees,  341. 
Roundel   v.   Currer,   173. 
Round  Lake  Ass'n  v.  Kellogg,  130. 
Rountree  v.  Denson,  455. 
Rous  V.  Jackson,  329. 
Roush  v.  Miller,  85. 
Routledge  v.  Dorril.  327,  329. 
Rowbotham  v.  Wilson,  366. 
Rowe  V.  Beckett,  412. 
V.  Bridge  Corp.,  6. 


CASES   CITED. 


665 


[The  figures  refer  to  pages.] 


Rowe  V.  Hamilton,  108. 

V.  NaUy,  857. 
Rowell  V.  Jewett,  172,  201. 

V.  Williams.  206. 
Rowland  v.  Carroll,  98. 
V.  Warren,  54,  179. 

V.  Williams,  460,  465. 
Roy  V.  Monroe,  23. 
Royce  v.  Guggenheim,  141. 
Royston  v.  Royston,  71. 
Rozell  V.  Vansyckle,  265. 
Rubens  v.  Prindle,  208. 
Ruch  V.  Rock  Island,  174. 
Ruckman  v.  Astor,  200. 

V.  Outwater,  17,  18. 
Rudebaugh  v.  Rudebaugh,  288. 
Rue  V.  Dole,  188,  190. 
Rugan  V.  Sabin,  469. 
Ruggles  V.  Lawson,  434,  436. 
Rumfelt  V.  Clemens,  SSlJ. 
Rumsey  v.  Railway  Co.,  5. 
Rimyan  v.  Stewart,  91. 
Rupp  V.  Eberly,  301. 
Rush  V.  Lewis,  314. 
Rusk  V.  Fenton,  385. 
Russ  V.  Perry,  110. 

V.  Steele,  448. 

V.  Stratton,  433. 
Russel  V.  Gulwel,  135. 
Russell,  Ex  parte,  894. 

V.  Allard.  144. 

V.  Bank,  64. 

V.  Coffin,  412. 

V.  Erwin's  Adm'r.  144. 

V.  Fabyan,  145,   163. 

V.  Jackson,  267,  360. 

V.  Petree,  214. 

V.  Scott,  370. 

V.  Southard,  186,  188. 

V.  Woodward,  396. 
Russell's  Appeal,  219. 
Rutherford  v.  Greene's  Heirs,  37. 
Ryan  v.  Adamson,  198. 

V.  Andrews,  484. 

V.  Brown,  6. 

V.  Dox,  188,  27L 

V.  Doyle,  269. 

V.  Freeman.  74. 
Ryder  v.  Rush,  214. 
Ryerson  v.  Quackenbush,  148,  877. 
Rymer  v.  Stanfield,  477. 


6 


Sacheverel  v.  Frogate,  376. 
Sackett  v.  Mallory,  172. 

V.  Sackett,  62. 
Sadler  v.  Pratt,  319. 
Saenger  v.  Nightingale,  244. 
Safiford  v.  Sa fiord,  92. 
Sager  v.  Tupper,  230,  235. 
Saint  V.  Pilley,  22. 
St.  Amour  v.  Rivard.  327. 
St.  Clair  v.  Williams,  96. 
St.  Felix  V.  Rankin,  346. 
St.  John  V.  Conger,  220. 
St.  Louis.  A.  T.  H.  R.  Co.  y.  Nugent, 

462. 
St.  Louis  Iron  &  Maeh.  Works  v.  BZim- 

ball,  219. 
St.  Louis  University  v.  McCune,  465. 
St.  Paul's  Church  V;  Attorney  General, 

477. 
Salmon  v.  Bennett,  393. 

V.  Hoffman,  192. 
Salomon  v.  O'Donnell,  159. 
Salter  v.  Boteler,  68. 

V.  Sample,  23. 
Saltmarsh  v.  Smith.  95. 
Saltonstall  v.  Sanders,  276. 
Saltoun  V.  Houstoun,  145. 
Sammes'  Case,  254,  334. 
Sampson  v.  Cotton  Mills,  10,  22. 

V.  Easterby,  137. 

V.  Henry,  165. 

V.  Hoddinott,  369,  370, 
Samson  v.  Rose,  9,  143. 
Sanborn  v.  Adair,  223. 

V.  Sanborn,  187. 

V.  Woodman,  175. 
Sand  V.  Hughes,  464. 
Sanderlin  v.  Sanderlln's  Adm'r,  113. 
Sanders  v.  Comish,  327. 

V.  Ellington,  9. 

V.  McMillian,  98. 

V.  Partridge.  149. 

V.  Wilson,  201. 
Sandes*  Case,  266. 
Sandford  v.  McLean,  90,  104. 
San  Diego  v.   Southern   Pac.   R.   Co., 

492. 
Sands  v.  Hughes,  464. 

V.  Pfeiffer,  21,  23. 


566 


CASES   CITED. 


[The  figures  refer  to  pases.] 


Sands  AJe  Brewing  Co.,  In  re,  198. 
Sandwich  v.  Railway  Co.,  309. 
Sandwich  Manuf  g  Co.  v.  Zellmer,  452, 

4:)"). 
Sanford  v.  Goodell,  397. 
V.  Harvey,   IGl. 
V.  Hill,  236. 

V.  Jackson,  110. 
V.  Johnson,  159. 

V.  Lackland,  397. 
San  Pedro  &  Caiion  del  Agua  Co.  v. 

U.  S.,  403. 
Sapp  V.  Morrill,  493. 
Sargeant  v.  Rowsey,  237. 
Sargent  v.  Parsons,  341. 

V.  Towne,  39. 

V.  Wilson,  247. 
Sarles  v.  Sarles,  G3. 
Sarsfield  v.  Nealey,  159. 
Satchell  v.  Doram,  219. 
Satterfield  v.  Maloue,  215. 
Saucer  v.  Keller,  IGT. 
Saulet  V.  Shepherd,  471. 
Saunders  v.  Blythe,  106. 

V.  Railway  Co.,  5. 

V.  Schmaelzle,  272. 

V.  Vautier,  326. 
Saundeys  r.  Oliff,  375. 
Savage  v.  Burnham,  109. 

V.  Lee,  255. 

V.  Mason,  367. 
Savile  V.  Blacket,  321. 
Savings  &  Loan  Soc.  v.  Burnett,  202, 

224,  225. 
Sawley  v.  Northampton,  285. 
Sawyer  v.  Cubby,  323. 

V.  Hanson,  130. 

V.  Kendall,   467. 

V.  Twiss,  18. 
Say  V.  Stoddard,  157. 
Sayer  v.  Sayer,  318. 

V.  Tnpper,  230. 
Sayers  v.  Hoskiuson,  64. 

V.  Wall,  78. 
Sayles  v.  Purifying  Co.,  13. 
Sayre  v.  Townsend,  267,  268. 
Scales  V.  Cockrill,  467. 
Scammell  v.  Wilkinson,  387, 
Scammon  v.  Campbell,  97. 
Scania n  v.  Cobb,  385. 

V.  Wright,  380,  388. 
Scanlon  v.  Walshe,  481. 


Scarry  v.  p:idridge,  246. 
Scatterwood  v.  Edge,  323. 
Sch.Tofor  V.  Schaefer,  57. 
Scliaefller  v.  IMichling,  445. 
Schaffcr  v.  Kettell,  478. 
Scliall  V.  Railroad  Co.,  470. 
SchearfE  v.  Dodge,  230. 
Schedda  v.  Sawyer,  403. 
Scheetz  v.  Fitzwater,  178,  282. 
Schenck  v.  Ellingwood,  318. 
Schenk  v.  Peay,  491. 
Schenley  v.  Com.,  353. 
Schermerhon  v.  Miller,  73,  74,  80. 
Schermerhorn  v.  Miller,  74. 

V.  Negus,  395. 
Schieffelin  v.  Cai-penter,  409. 
Schifferstein  v.  Allison,  240. 
Schilling  v.  Holmes,  138. 

V.  Rommger,  370. 
Schlntz  V.  McManamy,  428. 
Schlesinger  v.  Railroad  Co.,  174- 
Schley  v.  Lyon,  255. 
Schmidt  v.  Niemeyer,  492. 

V.  Quinn,  360. 
Schmitt  V.  Schmitt,  430. 
Schuebly  v.  Schnebly.  87,  96. 
Schneider  v.  Hoffmann,  125. 
Schnitzius  v.  Bailey,  357. 
Schofield  v.  Homestead  Co.,  443. 
School  Committee  v.  Kesler,  429. 
School  Dist.  V.  Lindsay,  168. 

v.  Trustees  of  First  Baptist  Church 
of  Normal,  176. 
SchoiT  V.  Etling,  110. 
Schroeder  v.  Bauer,  126. 
Schulenberg  v.  Harriman,  176. 
Schultz  V.  Schultz,  388. 
Schultze  V.  Houfes,  215. 
Schuster  v.  Schuster,  81. 
Schutt  V.  Lai-ge,  213. 
Schuyler  v.  Broughton,  339. 

V.  Smith,  164. 
Schuylkill  Nav.  Co.  v.  Stoever,  361. 
Schwab  Clothing  Co.  v.  Claunch,  249, 

389. 
Schwatken  v.  Daudt,  109. 
Schweiss  v.  Woodruff,  214. 
Schweitzer  v.  Wagner,  89. 
Schwinger  v.  Hickok,  24L. 
Scofield  V.  Alcott,  283. 

v.  Olcott,  288. 


CASES  CITED. 


667 


[The  figures  refer  to  pages.] 


Scott  V.  Beecher,  204. 

V.  Brick  Co.,  13G. 

V.  Causey,  72. 

V.  Delaney,  4G0. 

V.  Guernsey,  82,  342. 

V,  Henry,  234. 

V.  Howard,  95. 

V.  Lunt,  377. 

V,  Maglouglilin,  211. 

V.  ilewliirter,  212. 

V.  MlUs,  4G3. 

V.  Scott,  440,  475. 

V.  State,  343. 

V,  Twiss,  443. 

V.  Webster,  195. 

V.  West,  801. 
Scott's  Ex'r  V.  Scott,  409. 
Scovill  V.  McMahon,  172. 
Scripture  v.  Johnson,  236. 
Scudmore  v.  Scudmore,  23. 
Seahrook  v.  Mikell,  286, 
Seager  v.  McCabe,  88. 
Seaman  v.  Hax,  209. 
Sears  v.  Cunningham,  262. 

V.  Hanks,  123. 
Sebald  v.  Mulholland,  367. 
Sebastian  v.  Hill,  158. 
Sebring  v.  Mersereau,  345. 
Secard's  Lessee  v.  Davis,  224. 
Secheverel  v.  Dale,  49. 
Seckel  v.  Engle,  336. 
Secombe  v.  Railroad  Co.,  495. 
Second   Congregational    Soc.    v.   First 
Congregational  Soc,  277. 

V.  Waring,  273. 
Second  Nat.  Bank  v.  O.  E.  Merrill  Co., 

159. 
Security  Co.  v.  Cone,  288. 
S'ecurity  Loan  &  Tinist  Co.  v.   Willa- 
mette   Steam    ]SIills    Lumbering    & 
Manuf  g  Co.,  16. 
Sedberry  v.  Verplanck,  138. 
Sedgwick  v.  Hollenback,  138,  444,  448. 

V.  Laflin,  36. 
Seedhouse  v.  Broward,  21. 
Seeger  v.  Leakin,  296. 

V.  Pettit,  12. 
Seekright  v.  Moore,  85. 
Seeley  v.  Manning,  195. 
Seibold  v.  Clu-istman,  268. 
Selden  v.  Canal  Co.,  166. 
Sellers  v.  Sellers,  221. 


Sentill  V.  Robeson,  78. 
Sergeson  v.  Sealy,  318. 
Serle  v.  St.  Elvy,  205. 
Sessions  v.  Kent,  203. 
Sewall  V.  Wilmer,  308. 
Sewell  V.  Holland,  216. 

V.  Price's  Adm'r,  188. 
Sexton  V.  Carley,  144. 

V.  Wheaton,  394. 
Seymor's  Case,  51. 
Seymour  v.  Bull,  319. 

V.  Carli,  464. 

V.  Courtenay,  374. 

V.  Freer,  274. 

V.  Lewis,  352. 

V.  Sanders,  126. 
Shaeffer  v.  Weed,  90. 
Shafer  v.  Wilson,  365. 
Shaffer  v.  McCloskey,  231. 
Shall  V.  Biscoe,  192. 
Shalter's  Appeal,  317. 
Shand  v.  Hanley,  394. 
Shanfelter  v.  Plorner,  151. 
Shank  v.  Dewitt,  312. 
Shankland's  Appeal,  272. 
Shanks  v.  Lucas,  403. 
Shannon  v.  Grindstaff,  148,  149. 

V.  Hall,  221. 

V.  Kinny,  467. 
Shape  V.  Schaffuer,  SO. 
Shapleigh  v.  Pilsbury,  290,  299. 
Shapley  v.  Rangeley,  243. 
Sharington  v.  Sti'otton,  266. 
Sharon  Iron  Co.  v.  City  of  Erie,  175. 
Sharp  V.  Johnston,  118. 

V.  Ropes,  351. 
Sharpe  v.  Kelley,  144. 
Sharpsteen  v.  Tillou,  322. 
Shattuck  V.  Gragg,  87,  96. 

v.  Hastings,  170. 
Shaughnessey  v.  Leary,  356i. 
Shaupe  v.  Shaupe,  95. 
Shaw  V.  Carbrey,  14. 

V.  Ford,  395. 

V.  Galbi-aith,  4-10. 

V.  Railroad  Co.,  248. 

V.  Robinson,  297. 
Shay  V.  McNamara,  456. 
Sheafe  v.  Gushing,  57. 

V.  O'Neil,   95,   388. 
SheafCer  v.  Sheaffer,  175. 


568 


CASES  CITED. 


[The  figures  refer  to  pases.l 


Shearer  v.   Field,  '2:ib. 
V.  Mlddletou,  4m. 
Shearman  v.  Uicks,  308. 

V.  Irvine's  Lessee,  4u9. 
Shearman's  Adm'r  v.  llicks,  317. 
Shee  V.  Hale,  396. 
Sheets  v.  Joyuer,  135. 
V.  Selden,  139. 
V.  Seldeu's    Lessee,    134. 
Sheetz  v.  Fltzwater,  179. 
Sheffey  v.  Bank,  21i4. 
Shelby  v.  Hearne,  189. 
Shelden  v.  Erskine,  434. 
Sheldon  v.  Patterson,  248. 
Shell  V.   Duncan,  494. 
y.  Kemmerer,  364. 
Shelley's  Case,  290. 
Shelton   v.   Carroll,  95. 
V.  Codman,   135. 
T.  Flcklin,  15. 
V.  Hadlock,  67. 
V.  Homer,  814. 
Shepard  v.  Kinks,  344. 

V.  Shepard,  214,  386. 
Shepherd  v.  Cassiday,  121. 
V.  McEvers,    272. 
V.  May,   228. 
Sherard  v.  Sherard's  Adm'r,  99. 
Sherburne  v.  Jones,  9,  156,  157. 
Sheriff  v.  Neal,  271. 
Sherley  v.  Sherley,  262. 
Sherman  v.  Ballou,  843. 
V.  Dodge,  273. 
V.  Newton,  109. 
V.  Sherman,    228. 
V.  Williams,  188. 
Sherred  v.  Cisco,  867,  368. 
Sherrou  v.  Acton,  204. 
Sherry  v.  Frecking,  4. 
Sherwin  v.    Lasher,    140. 
Sherwood  v.  Saxton,  190. 
Shields  V.  Arndt,  369. 
V.  Lozear,   228. 
,     V.  Russell,  189. 

V.  Schitr,  400. 
Shiell  V.  Sloan,  90. 
Shillaiier  v.  Robinson,  190. 
Shinkle's  Assignees  v.  Bristow,  106. 
Shipley  v.  Bunu,  382. 
Shipp  V.  Snyder,  93. 
Shirkey  v.  Ha  una,  244,  245. 
Shirley  v.  Crabb,  168. 
V.  Shirley,  194. 


Shively  v,  Bowlliy,  5. 
Shoecraft  v.   Bloxham,   191. 
Shoemaker  v.   Commissioners,  263. 

V.  Huffnagle,  49. 
Shope  V.  Scbaffuer,  91. 
Shores  v.  Carley,  79. 
Short  V.  Caldwell,  226. 
Shortall  v,   Hinckley,  80. 
Shortridge  v.  Lamplugh,  260. 
Shortz  V.  Unangst,  272. 
Shotwell  V.  Mott,  275. 
Shrunk  v.  Navigation  Co..  5. 
Shryock  v.  Waggoner,  264. 
Shubert  v.  Winston,  IIS. 
Shultz  v.  Sanders,  490. 
Shumway  v.  Orchard,  241. 
Shury  v.  Piggot,  370. 
Sibley  v.  Ellis,  852. 

V.  Holden,  422. 

V.  Johnson,   107. 

V.  Lefflngwell,  214. 

V.  Smith,  493. 
Sidenberg  v.  Ely,  202. 
Sidmouth  v.  Sidmouth,  268. 
Sidney  v.  Sidney,  109. 
Sigourney  v.  Larned,  220. 
Silsby  V.  Bullock,  82. 
Silverthorne  v.  McKinster,  314. 
Simers  v.   Saltus,  145. 
Simkin  v.  Ashurst,  163. 
Simmons  v.  Ballard,  238. 
Simons  v.  Bank,  225. 
Slmonton  v.  Gray,  91. 
Simpkins  v.  Rogers,  22,  157. 
Simpson  v.   Downing,  467. 

v.  Leech,  93. 

V.  IMundee,  192,  219,  437. 

V.  Simpson,    481. 
Simpson's     Lessee    v.    Ammons,    835, 

343. 
Sims  V.  Hammond,  213. 
Sinclair   v.   Armitage,   185,    191. 

V.  Jackson,  319. 

V.  Learned,  234. 

V,  Slawson,    221. 
Singer,  Appeal  of,  494. 
Singleton  v.  Scott,  249,  815. 
Singleton's  Ex'r  v.  Siugleton's  Helra, 

97. 
Sinnett  v.  Herbert,  329. 
Sioux  City  &  St.  P.  R.  Co.  v.  Singer, 

174. 
Sir  Edward  Clere's  Case,  317. 


CASES  CITED. 


569 


[The  figures  refer  to  pages.] 


gkelUton  v.  Hay.  68. 
Skelton  v.  Scott,  195. 
Skinner  v.  Beatty,  125. 

V.  Crawford,  4ti0. 

V.  Skinner,   130. 

V.  Wilder,  4. 

T.  Young,  235. 
Skull  V.  Glenlster,  361. 
Slade  V.  Patten,  324,  325,  328. 
Slater  v.  Rawson,  32,  449,  456. 
Sleeper  v.  Laconia,  422. 
Slegel  V.  Lauer,  170,  179,  281,  282. 
Sllngerland  v.  Sherer,  240. 
Sloan  V.  Campbell,  194. 

V.  Fiu'niture  Co.,  417. 
Slocum  V.  Clark,  146. 
Small  V.  Small,  194. 
Smalley  v.  Isaacson,  345. 
Smart  v.  Waterhouse,  100. 

V.  W  ha  ley,  84. 
Smiley  v.  Wright,  110. 
Smith  V.  Adams,  371. 

V.  Ashton,  318. 

V.  Bank,  436,  489. 

V.  Bell,  286,  301. 

V.  Blake,  13. 

V.  Brand,  248. 

V.  Brannan,  176. 

V.  Burtis,  458. 

V.  Chapin,  467. 

V.  Cranford,  309. 

V.  Cremer,  189. 

V.  Crosby,  190. 

V.  Dayton,  146. 

V.  Death,  321. 

y.  Deschaumes,  116. 

V.  Eustis,  89,  91. 

V.  Floyd,  874,  375. 

V.  Garey,  307. 

V.  Gatewood,  374. 

V.  Handy,  107. 

r.  Haskins,  380. 

V.  Hodsdon,  218. 

V.  Horlock,  287. 

V.  Hubert,  133. 

V.  Hunter,  301, 

V.  Jeffreys,  2G9. 

y.  Jewett,  61,  64. 

V.  Kearney,  318. 

V.  Kemp,  374. 

V.  Kimbell,  301, 

T.  Kipp,  492. 


Smith  V.  Lawrence,  408. 

V.  Lee,  360. 

T.  Levlnus,  5. 

V.  McCarty,  85. 

V.  McKay,  464. 

V.  Marrable,  139. 

V.  Martin,  229. 

V.  Mattingly,  66. 

V.  Maxwell,  259. 

V.  Miller,  124,  353. 

V.  Morse.  319. 

V.  Neilson,  219. 

V.  O'Hara,  370. 

V.  Packard,  244. 

V.  Packhurst,  295. 

V.  Parsons,  331. 

V.  Pendergast,  153. 

V.  Pierce,  489. 

V.  Poyas,  61. 

V,  Price,  8. 

V.  Provin,  124. 

V.  Raleigh,  141. 

V.  Reich,  467. 

V.  Rice,  181. 

V.  Roberts,  232. 

V.  Rumsey,  123. 

V.  Russ,  370. 

V.  Saunders,  473. 

y.  Shuler,  196. 

V.  Simons,  106. 

y.  Smith,^  82,  84,  93,  192,  268,  846. 

Y.  Snyder,  150. 

V.  Stanley,  91. 

V,  Starr,  211. 

V,  Stewart,  145,  156. 

V.  Stigleman,  141, 

V.  Swan,  232. 

y.  Thackerah,  365. 

V.  Towers,  396. 

V.  Townsend.  229,  329. 

V.  Walser,  269. 

V.  West.  291. 

y.  Whitbeck,  151. 

y.  Williams,  455. 

y.  Yule,  216,  217. 
Smith  Paper  Go.  v.  Servln,  15. 
Smith's  Appeal,  49,  50,  80,  322,  829. 
Smith's  Heirs  v.  Bank,  408. 

V.  Smith,  99. 
Smith's  Lessee  v.  Folwell,  322. 
Smlthurst  v.  Edmimds,  185. 
Smoot  y.  Lecatt,  81. 


670 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Smylcs  T.  Hastlnjjs,  358. 
Smyth  V.  Carter,  06. 
Snavely  v.  Pickle,  203. 
Snedeker  v.  Warring,  13,  21. 
Sneed  v.  Sneed,  318. 
Snell  V.  Levitt,  357. 
Saeirs  Ex'rs  v.  Snell,  317. 
Snow  V.  Boycott,  67. 

V.  Parsons,  3G9. 

V.  Pressey,  182. 

V.  Pulitzer,  141. 

y.  Stevens,  91. 
Snyder  v.  People,  123. 

V.  Snyder,  231. 

V.  Sponable,  387. 
Society  for  Promoting  Theological  Ed- 
ucation V.  Attorney  General,  329. 
SofCyns'  Case,  133. 
Sohier  v.  Eldredge,  61. 

V.  Trinity  Church,  170. 

V.  Williams,   321. 
Solicitors'  Loan  &  Trust  Co.  v.  Wash- 
ington &  I.  Ry.  Co.,  237. 
Sellers  v.  Sellers,  5. 
Solomon  v.  Master,  etc.,   of  Mystery 

of  Vintners,  365. 
Somers  v.  Schmidt,  447,  449. 
Somes  v.  Brewer,  213. 

V.  Skinner,  244,  451.  , 

Sommers  v.  Reynolds,  151. 
Soper  V.   Guernsey,   181. 
South  V.  South,  316. 
Southampton  v.  Hertford,  831. 
Southcote  V.  Stowell,   299. 
Souther  v.  Pearson.  232. 
Southerland  v.  Hunter,  437. 
Southern  v.  Wollaston,  324. 
Southern    California    Lumber    Co.  v. 

McDowell,  489. 
Southern  Life  Ins.  Co.  v.  Cole,  436. 
Southern  Marble  Co.  v,  Darnell,  369. 
Southern  Pac.  R.  Co.  v.  Doyle,  190. 
South  Western  Ry.  v.  Thomason,  25. 
Souverbye  v.  Arden,  435. 
Soverhill  v.  Suydam,  229. 
Sowler  V.  Day,  215. 
Spalding  v.  Hershtteld,  109. 
Spangler  v.  Stanler,  87,  88. 
Sparhawk  v.  Wills,  201. 
Sparkman  v.  Roberts,  115. 
Sparrow  v.  Hovey,  463,  468. 
V.  Kingman,   105. 


Spaulding  v.  Crane,  119. 

V.  Hallenbeck,   171. 

V.  Sones,   239. 
Speck  V.  Riggin,  214. 
Spencer  v.  Austin.  333,  335. 

V.  Ayrault,   231. 

V.  Carr,  452. 

V.  Lewis,   62,   71. 

v.  McGowen,  146. 

V.  Slater,   392. 

V.  Spencer,  208. 

V.  Waterman,  206. 

V.  Weston,    111. 
Spencer's  Case,  8,  136,  137. 
Spensley  v.  Valentine,  354. 
Sperry  v.  Sperry,  174. 
Spinney  v.  Barbe,  18. 
Sprague  v.   Baker,  135. 

V.  Beamer,   232. 

V.  Bond,   187. 

V.  Cochran,  243. 

V.  Coenon,   491. 

V.  Woods,  412. 

V.  Worcester,  369. 
Spraker  v.  Van  Alstyne,  89. 
Spring  V.   Haines,  243. 

V.  Russell,  6. 
Springer  v.  Lehman,  196. 
Springfield  Fire  &  Marine  Ins.  Co.  t. 

Allen,   198. 
Sproul  v.  McCoy,  113. 
Spruance  v.  Darlington,  109. 
Spurgin  v.  Adamson,  235. 
Squier  v.   Mayer,  20. 
Squire  v.  Harder,  206. 
Squires   v.    Summers,   434. 
Stafford  v.  Lick,  431. 

V.  Van  Rensselaer,   192. 
Stainback  v.  Harris,  480. 
Stallard  v.  Cushiug,  357. 
Stauard  v,  Eklridge,  138,  444. 
Standen  v.  Chrismas,   186. 

V.  Standen,   317. 
Standish  v.  Lawrence,  367. 
Stanley  v.  Beatty,  210. 

V.  Colt,  37,  170,  262,  272. 

V.  Green,  420. 

V.  Greenwood,    122. 
Stansbury  v.  Hubner,  395. 
Stansell  v.   Roberts,  226. 
Stanwood  v.  Dunning,  85. 


CASES   CITED. 

[The  figures  refer  to  pages.] 


571 


Staples  V.  Brown,  80. 

V.  Kmery,   17. 

V.  Feiitou,   217. 
Star  V.   Ellis,   273. 

V.  Rookesby,   SCa 
Stark  V.  Brown,  247. 

V.  M'Gowen,  37S. 

V.  Olseu,  226. 
Starr  v.  Jackson,  142. 

V.  Leavitt,    343. 
State  V.  Black  River  Phosphate  Co.,  6. 

V.  Bradbury,  3(J2. 

V.  Brown,   280. 

V.  Davis,    3U2. 

V.  Eason,  G. 

V.  Elliot,   18. 

V.  Evans,  3U3, 

V.  Gerard,  270. 

V.  Gilmanton,  6. 

V.  Jones,    154. 

V.  Moore,    8. 

V.  Pacific  Guano  Co.,  5. 

V.  Parrot  t,  303. 

V.  Piper,  142. 

V.  Pottmeyer,  4,  6. 

V.  President,  etc.,  of  Bank  of  Mary- 
land, 263. 

V.  Raglaud,  184, 

V.  Stephenson,  8. 

V.  Suttle,  459. 

V.  Trask,  299. 

V.  Trontman,  468. 

v.  Votaw,  144. 
State  Bank  v.  Hinton,  89. 

V.  Mathews,  210. 

V.  Whittle,  393. 
Steacy  v.  Rice,  255. 
Steamboat  Magnolia  v.  Marshall,  6. 
Stearns  v.  Godfrey,  177,  178. 

V.  Palmer,  273. 

V.  Sampson,  105. 
Stebbins  v.  Hall,  207. 

V.  Merritt,  430. 
Stedman  v.  Gassett,  144. 
Steed  V.  Preece,  23. 
Steel  V.  Board  of  Education,  105. 

V.  Frick,  154. 
Steele,  In  re,  61. 

V.  Carroll,  89. 

V.  La  Frambois,  92. 
Steere  v.  Steero.  262. 

V.  Tiffany,  357. 


Steers  v.  City  of  Brooklyn,  472. 
Steffens  v.  Earl,  161. 
Stehlin  v.  Stehlin,  110. 
Stehman  v.  Stehman,  285. 
Steib  V.  Whitehead,  396. 
Steiger's  Adm'r  v.  Hillen,  111. 
Stein  V.  Stein,  99,  105. 

V.  Sullivan,  220.     , 
Steinmetz's  Estate,  In  re,  387. 
Stell  V.  Barham,  36. 
Stephen  v.  Beall,  250. 
Stephens  v.  Bridges,  152,  281. 

V.  Evans'  Adm'x,  323. 

V.  Hussk,  433. 

V.  Hume,  75. 

V.  Insurance  Co.,  197. 

V.  Rinehart,  434,  436. 

V.  Stephens,  324. 
Stephenson  v.  Boody,  454. 

V.  Elliott,  207. 
Sterling  v.  Penlington,  79. 

V.  Warden,  106. 
Stern  v.  Lee,  117. 

V.  Thayer,  153. 
Stevens  v.  Battell,  343. 

V,  Campbell,  246. 

V.  Cooper,  236. 

V.  Ely,  267. 

V.  Kelley,  6. 

V.  Melcher,  60. 

V.  Owen,  87,  107. 

V.  Pantlind,  142,  153. 

V.  Pierce,  139. 

V,  Railway  Co.,  10,  15. 

V.  Smith,  106; 

V.  Town  of.  Norfolk,  343. 

V.  Winship,  59. 
Steven's  Estate,  In  re,  171. 
Stevens*  Heirs  v.  Stevens,  96,  99. 
Stevenson  v.  Crapnell,  266,  436. 

V.  Kaiser,  433. 

V.  Lambard,  140,  148,  378. 

V.  Lesley,  272. 
Steward  v.  Harding,  162. 
Stewart  v.  Bank,  345,  346. 

V.  Barclay,  79. 

V.  Brand,  121. 

V.  Chadwick,  271. 

V.  Clark,  56. 

V.  Drake,  447. 

V.  Gregg,  146. 

V.  McMahan,  229. 


572 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Stewart  v.  McMartln,  95. 
V.  McSweeuey,  220. 
V.  Neely,  305. 
V.  Piatt,  224. 
V.  Ross,  82. 
V.  Smith,  98. 
V.  Stewart.  110,  342. 
V.  Weed,  435. 
V.  Wood,  194. 
Stewart's  Lessee  v.  Stewart,  94,  105. 
Stickney  v.  Munroe,  142. 
Stieff  V.  Ilartwell,  491. 
Stiles  V.  Probst,  428. 
Stillnian  v.  Flenniken,  20. 
Stlllman's  Ex'rs  v.  Stillman,  204. 
Stlllwell  V.  Doufjhty,  59. 

V.  Ha  mm,  23:?. 
Stlnchfield  v.  Milliken,  199. 
Stlnebaiigh  v.  Wisdom,  75. 
Stiuson  V.  Ross,  19G. 

V.  Sumner,  lOfJ. 
Stirbling  v.  Ross,  104. 
Stivers  v.  Home.  223. 
Stockbridge  Iron  Co.  v.  Hudson  Iron 

Co.,  417. 
Stockman  v.  Wallis,  242. 
Stockport  Waterworks  Co.  v.  Potter, 

369. 
Stockton  V.  :Martin,  49. 
V.  Railroad  Co.,  495. 
V.  Williams.  403. 
Stockwell  V.  McHenry,  222. 

V.  Sargent,  101. 
Stoddard  v.  Forbes,  237. 
V.  Gibbs,  79. 
V.  Whiting,  188.      • 
Stoerer  v.  Stoever.  188. 
Stokes  V.  Berry,  457. 
V.  McAllister.  94. 
V.  McKlbbin,  78. 
V.  Norwood.  109. 
Stokoe  V.  Singers,  355,  364. 
Stoltz  V.  Doering,  469. 
Stone  V.  Darnell,  125. 
V.  Ellis,  175. 
V.  Fitts,  4.54, 
V.  McMullen,  48. 
V.  Stone,  493. 
V.  Vandermark,  109. 
Rtookey  v.  Stookey,  97. 
Storrs  V.  Benbow.  32.'?,  328. 
Story  V.  Springer,  188. 


Stott  V.  Rutherford.  138. 
Stoudinger  v.  Newark,  362. 
Stoughton,  Appeal  of,  7. 

V.  Leigh,  S7,  88. 
Stout  V.  Lye,  246. 
V.  Merrill,  383, 
Stover  V,  Boswell's  Heir,  480. 
V.  Eycleshimer,  415. 
V.  Hazelbaker,  152. 
V.  Jack,  6. 
Stow  V.  Tifft,  85. 
Stowe  V.  Banks,  189. 
Stowell  V.  Waddingham,  66. 
Strang  v.  Allen.  200,  237. 
Strange  v.  Spaulding,  460. 
Strattan  v.  Best,  334. 
Strauss  v,  Abrahams.  392. 
Straw  V.  Greene,  244. 
Strawn  v,  Strawn,  455. 
Streeper  v.  Abeln,  445, 
Street  v,  Saunders,  101. 
Stdckland  v.  Parker,  12,  13. 
Strobe  v.  Downer,  247. 
Stroebe  v.  Fehl,  71.  72. 
Strohm  v.  Good,  193. 
Strong  V.  Clem,  95. 
v.  Converse.  207. 
V,  Doyle,  18, 
V,  Insurance  Co,,  197. 
V.  Lord,  340, 
V,  Powell,  454. 
V,  White,  3. 
Strother  v.  Law,  315. 
Stroud  V.  Lockart.  223. 

V.  Rogers,  378. 
Stroup  V.  Stroup,  89. 
Strouse  v.  Cohen,  181. 
Stuart  V.  Kissam,  72. 

V.  Lowry,  451, 
Stubblefield  v,  Boggs,  403. 

V.  Menzies,  303. 
Stubbs  V.  Parsons,  139. 
Stuckey  v.  Keefe's  Ex'rs,  338. 
Studdard  v.  Wells,  171. 
Studstill  V.  Willcox,  461. 
Stiill  V.  Graham.  87,  106. 
Stults  V,  Sale.  114. 
Stultz  V.  Dickey,  9. 
Stump  V.  Deneale,  473. 

V.  Findlay,  59. 
Sturgeon  v.  Wingfleld,  456, 
Sturges  V.  Hart,  228. 


CASES   CITED. 


673 


[The  figures  refer  to  pages.] 


Sturtevant  v.  Jaqii^s,  267. 
Stuyvesant  v.  Neil,  312. 
Sudbury  v.  Jones,  21. 
Suddarth  v.  Robertson,  144. 
Suffield  V.  Brown,  351. 
Sullivan  v.  Carberry,  23. 

V.  Chambers,  255,  437. 

V.  Eddy.  351,  433,  460. 

V.  Jernifjan,  370. 

V.  McLenans,  207. 

V.  Mining  Co.,  371. 
Sumerel  v.  Sumerel,  110. 
Summer  v.  Babb.  95,  97,  101,  106. 

V.  Bromley.  248. 
Sumner  v.  Partridge,  74,  77. 

V.  Skinner,  247. 

V.  Stevens,  465. 
Sunderlin  v.  Stnithers,  455. 
Supplee  V.  Timothy,  162. 
Surplice  v.  Farnsworth,  135. 
Susquehanna  &  W.  V.  R.  &  Coal  Co. 

V.  Quick,  466. 
Sussex  Co.  Mut.  Ins.  Co.  v.  Woodruff, 

199. 
Sutherland  v.  Goodnow,  148. 

V.  Rose,  233. 

V.  Sutherland,  85. 
Sutliff  V.  Forgey,  85,  95. 
Sutphen  v.  Therkelson.  364. 
Sutter  V.  Lackmann,  150. 
Sutton  V.  Aiken,  256. 

V.  Jervls,  216. 
Suydam  v.  Dunton,  357. 

v.  Jones,  135,  441. 
Swam  V.  Mizner,  163. 
Swaine  v.  Burton,  479. 

V.  Ferine,  60,  91. 
Swan  V.  Busby,  144. 

V.  Yaple,  210,  229. 
Swatts  V.  Bowen,  232. 
Swayne  v.  Chase,  117. 
Sweaney  v.  Mallory,  110. 
Swearingen  v.  Lahner,  182. 

V.  Robertson,  468. 
Sweet  V.  Myers,  18. 
Sweetapple  v.  Bindon,  23,  78. 
Sweetzer  v.  Atterbury,  187. 
Swenson  v.  Plow  Co.,  245. 

v.  Seale,  488. 
Swetland  v.  Swetland,  187. 
Swett  V.  Stark,  211,  245. 


Swift  V.  Edson,  246. 

V.  Lee,  473. 

y.  Mulkey,  461. 

V.  Stovall,  452. 

V.  Thompson,  13. 
Swlhart  v.  Swihart,  109. 
Swinburne  v.  Swinburne,  270. 
Sykes  v.  Benton,  132. 

V.  Sykes,  92. 
Syler  v.  Eckhart,  415. 
Sylvester  v.  Hall,  140. 
Symmes  v.  Drew,  98. 
Sym's  Case,  71. 
Synge  v.  Synge,  396. 
Sypher  v.  McHenry,  270. 


T 


Tabele  v.  Tabele,  99. 
Tabor  v.  Robinson,  16,  20. 
Tacey  v.  Irwin,  491. 
Taft  V.  Stetson,  12. 

V.  Taft,  108,  261. 
Tainter  v.  Clark,  272,  27.".  315. 

V.  Cole,  132. 
Talamo  v.  Spitzmiller,  156. 
Talbot  V.  Cruger,  23. 

V.  Hill,  101. 

v.  Tipper,  319. 
Talbott  V.  Barber,  265. 
Talley  v.  Thompson,  125. 
Tallmadge  v.  Bank,  351. 
Tallman  v.  Snow,  172,  174. 

V,  Wood,  258,  259. 
Taltarum's  Case,  51. 
Tameling  v.  Emigration  Co.,  403. 
Taney  v.  Fahnley,  296. 
Tanguay  v.  Felthonsen,  207. 
Tanner  v.  Hills,  154. 
Tappan  v.  Deblois,  277. 
Tarbell,  In  re,  240. 
Tarbuck  v.  Tarbuck,  302. 
Tarlotting  v.  Bokern.  156. 
Tarrant  v.  Swain,  IIG. 
Tasker  v.  Bartlett,  429. 
Tate  V.  Goff.  115. 

V.  Lawrence,  439. 

V.  Tally,  49. 
Tatem  v.  Chaplin,  136. 
Tatton  V.  Mollineux,  327. 


574 


CASES   CITED. 

[The  figures  rtfer  ^o  pages.] 


Tatiim  V.  City  of  St.  T.ouis,  470. 
rayloe  v.  Dug^er,  4G4. 

V.  Gould,  TO,  79. 
Taylor  v.  Benham,  272. 

V.  Boulware,  118. 

V.  Cooper,  145. 

V.  Cox,  384. 

V.  Eatman,   311. 

V.  Hopper,  359,  363. 

V.  Horde,   4158, 

V.  Kearn,  106. 

V.  Kelly.  473. 

V.  Lawrence,  111. 

V.  McCrackin,  94. 

V.  Mason,  172. 

V.  Millard,  344,  351. 

V.  Mitchell,  475. 

V.  Murphy,   339. 

V.  Page,  211. 

V.  Porter,  31,  41,  234,  235. 

V.  Smith,  78. 

V.  Sutton,  170. 

V.  Taylor,  48,  107,  268,  287,  302. 

V.  Townsond,    14. 

V.  Trust  Co.,  182. 

V.  Vale,   377. 

V.  Warnaky,    359. 

V.  AVhitehead,  361. 

V.  ^Yright,  493. 
TeaCf  V.  Hewitt,  10,  11,  13. 
Teague's  Settlement,  In  re,  329. 
Toape's  Trusts,   In  re,  317. 
Temple  v.  Scott,  290. 

V.  Whittier,  232. 
Templeman  v.  Biddle,  9. 
Ten  Eyck  v.  Craig,  206. 

V.  Town  of  Warwick,  6. 
Terhune  v.  Elberson,  8. 
Terrell  v.  Reeves,  287,  327. 
Terrett  v.  T'^ylor,  440,  446. 
Terriere  v.  City  of  New  Orleans,  472 
Thackara  t.  Mintzer,  396. 
ThaiT)  V.  Brenneman,  432. 
Tharpe  v.  Dunlap,   194. 
Thayer  v.  Bacon,  4.53. 
V.  Campbell,  210. 
V.  McGee,    178. 
V.  Mann,  240. 
V.  Payne,  352,  356,  426. 
V.  Thayer,  105. 
V.  Torrey,    418. 


Thayer  v.  Wellington,  263. 
Tlicllusson  V.  Woodford,  323,  324,  830, 
Theresa  Drainage  Dist.,  In  re,  495. 
Third  Nat.  Bank  v.  O'Brien,  439. 
Thomas  v.  Bland,  441. 

V.  Bridges,   193. 

V.  Cook,   409. 

V.  Crout,  19,  22. 

V.  Hayward,  137. 

V.  Hesse,  98. 

V.  Howell,  172,  173. 

V.  Inhabitants  of  Marshfleld,  416. 

V.  Jenks,  394. 

V.  Linn,  211. 

V.  Record,   174. 

V.  Simpson,  95. 

V.  Stickle,  455. 

V.  Sylvester,  378. 

V.  Thomas,    60,   341,    858, 

V.  Wyatt,   417. 
Thomas'  Adm'r  v.  Von  KapfE's  Ex'rs, 

135. 
Thompson  v.  Barber,  343. 

V.  Burhans,   462. 

V.  Chandler,   234. 

V.  Cochran,  90. 

V.  Egbert,  109. 

V.  Gregory,  417,  418. 

V.  Hartline,   270. 

V.  Hill,  290. 

V.  Holladay,  182. 

V.   Hoop,   286. 

V.  Leach,  434. 

V.  Lyon,  314. 

V.  McCorkle,   105. 

V.  Marley,  265. 

V.  jNIarshall,  184. 

V.  Merrill,  455. 

V.  jSIorrow,   97. 

V.  Murphy,   59. 

V.  Railroad  Co.,  185. 

V.  Rose,  137. 

V.  Thompson,  106,  42«. 

V.  Vance,    86. 
Thompson's  Lessee  v.  Hoop,  474. 
Thoms  V.  King,  104. 
Thomson  v.  Ludington,  291. 

V.  Peake,   38. 
V.  Waterlow,   351. 
Thomson-Houston  Electric  Co.  v.  Dur- 
ant  Land-Imp.  Co.,  135. 


CASES   CITED. 


675 


[The  flffures  refer  to  pages.] 


Thong  V.  Bedford,  297. 
Thorington  v.  Thorington,  311. 
Thorn  v.  Sutherland,  23. 

V.  WooUcombe,    152. 
Thornburg  v.  Wiggins,  338. 
Thorndike  v.  Burrage,  143. 
Thornton  v.  Burch,  9. 

V.  Knox's  Ex'r,  192. 

V.  Thornton,  317,  334,  337,  338. 

V.  Vaughan,  262. 
Thornton's  Ex'rs  v.  Krepps,  77. 
Thoroughgood's  Case,  406. 
Thorp  V.  Raymond,  469. 
Thorpe  v.  Goodall.  320. 
Thresher  v.  Water  Works,  13. 
Throckmorton  v.  Pence,  468. 

V.  Throckmorton,   267. 
Thurber  v.  Martin,  370, 

V.  Townsend,  82,  S3. 
Thurman  v.  Cameron,  442. 
Thursby  v.  Plant,  378. 
Thurston  v.  Dickinson,  61. 

V.  Hancock,  365. 

V.  Maddocks,   116. 

V.  Prentiss,  240. 
Thwayles  v.  Dye,  319. 
Tibbals  v.  Iffland,  149. 

V.  Jacobs,  393. 
Tice  V.  Annin,  209. 
Tidd  V.  Lister,  272. 
Tifft  V.  Hoiton,  12,   13,  21. 
Tilden  v.  Streeter,  189. 
Tileston  v.  Newell,  441. 
Tllford  V.  Fleming,  14& 
Tilley  v.  King,  171. 
TlUinghast  v.  Bradford,  397. 

V.  Goggeshall,  78. 
Tillotson  V.  Millard,  118,  122,  123. 

V.  Prlchard,  441. 
Tillson  V.  Moulton,  187. 
Tilton  V.  Hunter,  223. 
Timmins  v.  Rowlinson,  162. 
Tinicum  Fishing  Co.  v.  Carter,  373, 
Tink  V.  Walker,  89. 
Tinker  v.  Forbes,  351. 
Tinney  v,  Tinney,  108. 
Tipton  V,  Wortham,  250. 
Tisdale  v,  Jones,  108. 
Tisher  v.  Beckwith,  433. 
Titcomb  v.  Yantyle,  383. 
Titman  v.  Moore,  118,  119,  121. 


Titus  V.  Mabee,  14. 

V.  Neilson,  90. 

V.  Wan-en,  125. 
Titzell  V.  Cochran,  302. 
Tobey  v,  Moore,  326. 

V.  Reed,  196. 

V.  Taunton,  359. 
Tobias  v.  Ketchum,  110. 
Toby  V,  Schultz,  145. 
Tod  V,  Baylor,  98. 
Todd  V,  Flight,  142, 

V.  Jackson,  165. 

V.  Johnson,  235. 

V.  Nelson,  394. 

V,  Outlaw,  225, 

V,  Oviatt,  79. 

V,  Sawyer,  396, 
Toll  V,  Wright,  457. 
Toll  Bridge  Co.  v.  Osborn,  25. 
Tolle  V.  Alley,  221. 
Toilet  V,  Toilet,  318. 
Tomlin  v.  Railway  Co.,  5. 
Tomlinson  v.  Insurance  Co.,  198. 
Tompkins  v.  Elliot,  441. 

V.  Fonda,  95. 
Toms  V.  Williams,  261. 
Tone  V.  Brace,  138. 
Toney  v.  Goodley,  146. 
Tooke  V.  Hardeman,  110. 
Toole  V.  Dibrell,  125. 
Toomer  v.  Randolph,  183. 
Toomey  v.  McLean,  101. 
Torrey  v.  Burnett,  23. 

V,  Cook,  229,  241. 

V.  Deavitt,  209. 

V.  Minor,  110,  111. 
Torriano  v.  Young,  139,  160. 
Tottel  V.  Howell,  374,  415. 
Totten  V.  Stuyvesant,  93, 
Toupin  V.  Peabody,  134. 
Tourville  v.  Pierson,  117,  118. 
Tousley  v.  Tousley,  221. 
Towanda  Bridge  Co.,  In  re,  379. 
Towle  V.  Ayer,  31. 
Town  V,  Needham,  346. 
Towne  v.  Bowers,  9. 

V,  Fiske,  18,  21. 
Town  of  Freedom  v.  Norris,  357. 
Town  of  Old  Town  v.  Dooley,  423. 
Townsend  v.  Brown,  401, 

V.  Downer,  439. 


676 


CASEb   CITEC. 


[The  figures  refer  *o  pages.] 


Townsend  v.  Hubbard,  432. 
V.  Townseud,  1U8. 
V.  Westacott.  394. 
V.  Wharf  Co.,  111. 
Tracy  v.  Atherton,  353,  359. 

V.  Jenks,  221. 
Trafton  v.  Hawes,  410,  412. 
Transportation  Co.  v.  Chicago,  365. 
Trask  v.  Graham,  137. 

V.  Patterson,  72. 
Traveller's  Ins.  Co.  v.  Patten,  24(5. 

V.  Youut,  420. 
Travers  v.  Dorr,  208. 
Trawick  v.  Harris,  114. 
Trayser  v.  Trustees  of  Asbury   Uni- 
versity, 240. 
Treary  v.  Cooke,  374. 
Tress  v.  Savage,  158. 
Trich's  Ex'r  v.  Trich.  384. 
Trimble  v.  Smith,  4G2. 
Tripp  V.  Hasceig,  8. 
Trolan  v.  Rogers,  455. 
Trollope  v.  Linton,  319. 
Tromans  v.  Mahlman,  118. 
Troost  v.  Davis,  202. 
Trotter  v.  Hughes,  207,  208. 

V.  Oswald.  327. 
True  v.  Haley,  234. 

V.  Morrill,  118,  119. 
Truett  V.  Fuuderburk,  85,  109. 
TtuU  V.  Bigelow,  213. 

V.  Eastman,  415,  448,  456. 
V.  Fuller,  15. 
V.  Granger,  133. 
Trulock  V.  Donahue,  377. 
Truman  v.  Weed,  218. 
Trumbull  v.  Trumbull,  8G. 
Trusdell  v.  Lehman,  57. 
Trustees  of  Amherst  College  v.  Ritch, 

271. 
Trustees    of    Dartmouth    Colh'ge    v. 

Clough,  149. 
Trustees  of  East  Hampton  v.  Kirk, 

460. 
Trustees    of    Hopkin.s'    Academy    v. 

Dickinson,  470,  471. 
Trustees  of  Philadelphia  BaptistAss'n 

V.  Hart's  Ex'rs,  275,  277. 
Trustees  of  Phillips  Academy  v.  King, 

263. 
Trustees  of  Poor  of  Queen  Anne's  Co. 
V.  Pratt.  104. 


Trustees  of  Putnam   Free  School   v. 

Fisher,  460. 
Trustees  of  Schools  v.  SchroU,  5,  423. 

V.  Wright,  262. 
Tnistees    of    Western    University    v. 

Robinson,  376. 
Trustees,  etc.,  of  Queen  Anne's  Co.  T. 

I'ratt,  90. 
Tryon  v.  Munson,  184. 
Ticker  v.  Byers,  156. 
V.  Eldred,  362. 
v.  Moreland,  382.  383. 
V.  Price,  467. 
V.  Thurstan,  476. 
V.  Tilton,  215. 
Tudor  Iron  Works  v.  HItt,  19. 
Tuft  V.  Adams,  448. 
Tuite  V.  Miller.  444. 
Tulk  V.  Moxhay.  351. 
TuUett  V.  Armstrong,  396. 
Tumlinson  v.  Swinney,  120. 
Tunison  v.  Chambliu,  394,  435. 
Tuiistall  V.  Christian,  365. 
Turman  v.  White,  296. 
Turner  v.  Beruheimer,  123. 
V.  Davis.  23.  24. 
V.  Doe,  158. 
V.  Flenniken,  237. 
V.  Kennedy,  23. 
V.  Lee,  377. 
V.  Moore,  462. 
V.  Rusk.  384. 
V.  Scheiber.  109. 
V.  Scott,  473. 
V.  Tovpnsend,  139. 
V.  Watkins,  209. 
V.  Wright,  62. 
Turner  Coal  Co.  v.  Glover,  195. 
Turpin  v.  Ogle,  220. 
Tusk  V.  Ridge,  181. 
T utter  V.  Fiyer,  146. 
Tuttle  V.  Bean,  162. 
V.  Brown.  231. 
V.  Turner,  435. 
V.  Willson,  111. 
Tweddell  v.  Tweddell,  204. 
Twynam  v.  Plckard,  137. 
Twyne's  Case,  393. 
Tygret  v.  Potter,  189. 
Tyler  v.  Hamilton,  245. 
V.  Hammond.  358. 
V.  Johnson,  126. 


CASBS  CITSD. 


677 


[The  flgures  refer  to  pages.] 


Tyler  v.  Moore,  419. 

V.  Wbeeler.  82. 

V.  Wilkinson,  369. 
Tyrrell's  Case.  256. 
Tyrringham's  Case,  375. 
Tyson  V.  Smith,  354. 


Umbenhower  v.  Miller,  189. 
Underbill   v.   Railroad   Co.,    170,  172, 

176. 
Underwood  v.  Birchard,  448. 

V.  Carney,  351. 

V.  Curtis,  24. 
Unger  v.  Leiter,  90. 
Union  Depot  Co.  v.  Chicago,  K.  &  N. 

Ry.  Co.,  159. 
Union  Depot  Street-Railway  &  Trans- 
fer Co.  of  Stillwater  v.  Brunswick, 
423. 
Union  Mut.  Life  Ins.  Co.  v.  Campbell, 
433. 

V.  Hauford,  208. 

V.  Kirchoff,  236. 

V.  Slee,   188.   210. 
Union  Pac.  Ry.  Co.  v.  U.  S.,  452. 
United  States  v.  Appleton,  364. 

V.  Bostwick,   139. 

V.  Certain  Tract  of  Land,  495. 

T.  Chicago,  495. 

V.  Cook,  400. 

V.  Duncan,   109. 

V.  Fisher,  41. 

V.  Iron  Silver  Min.  Co.,  403. 

V.  Minor,  403. 

V.  Nelson,    428. 

V.  Railroad  Bridge  Co.,  495. 

V.  Sliney,  217. 

V.  Steenerson,  403. 
U.  S.  Bank  v,  Burson,  230. 
United   States   Inv.   Co.   v.    Phelps   & 

Bigelow  Windmill  Co.,  126. 
United  States  Mortg.  Co.  v.  Gross,  216. 
Upchurch  v.  Anderson,  32. 
Upington  v.  Corrigan,  171. 
Upjohn  V.  Board,  371. 
Upton  V.  Archer,  428. 
Uridias  v.  Morrell,  163. 
Usher  v.  Skate  Co.,  181. 
Utermehle  v.  McGreal,  249. 

KEAL  PROP. — 37 


Valentine  v.  Healey,  341,  342. 
Vanarsdall  v.  Fauntleioy's  Heirs,  75, 

76.  79. 
Vanatta  v.  Brewer.  177. 
Van  Beuren  v.  Dash.  477. 
Vanbever  v.  Vanbever,  271. 
Van  Bibber  v.  Williamson,  61. 
Van  Brunt  v.  Scbenck,  145. 
Van  Buren  v.  Olmstead.  189,  200, 
Vance  v.  Vance,  107,  108. 
Van  Cleaf  v.  Burns,  104. 
Vanderheyden  v.  Crandall,  295. 
Vanderkarr  v.  Vanderkarr,  441. 
Vandei-plauk  v.  King.  327. 
Vanderpoel  v.  Van  Alleu,  13. 
Van  Deusen  v.  Sweet,  131,  384. 

V.  Young,  304. 
Van  Doren  v.  Everitt,  9,  10,  131. 
Van  Duyne  v.  Thayre,  91. 
Van  Duzer  v.  Van  Duzer,  80. 
^'ane  v.  Lord  Barnard,  62. 
Van  Giesen  v.  W^bite,  288. 
Van  Hoozer  v.  Coi^y,  185. 
Van  Horn  v.  Bell,  429. 
Van  Home  v.  Campbell,  395. 

V.  Grain,  148. 

V.  Fonda,  341. 
Van  Keuren  v.  Corkins,  227, 
Van  Meter  v.  Thomas,  34. 
Vann  v.  Marbury,  226. 
Van  Ness  v.  Paeard,  17,  22. 
Van  Note  v.  Downey,  71. 
Van  Ostrand  v.  Reed.  430. 
Van  Rensselaer  v.  Ball,  169,  176. 

V.  Clark,  213. 

V.  Dennison.  31.  169,  185. 

V.  Hays,  31.  148.  376,  377. 

V.  Poucher.  32. 

V.  Radcllff,  375. 

V.  Read,  376.  377. 

V.  Smitb,  31. 

V.  Snyder,  151. 
Vansant  v.  AUmon,  228. 
Van  Sickler  v.  Jacobs.  146. 
Vanstory  v.  Thornton,  117. 
Van  Thorniley  v.  Peters,  225. 
Van  Vechten  v.  Terry,  246. 
Van  Vronker  v.  Eastman,  90,  202. 
Van  Wagner  v.  Van  Nostrand,  443. 
Van  Wyck  v.  Seward,  393. 


678 


CASES   CITEn. 


[The  figures  refer  to  pages.] 


Varney  v.  Stevens,  60.  2S9. 
Varnum  v.  Abbott,  34,"^. 
Yarrell  v.  Wendell,  312,  313. 
Vartle  v.  Underwood,  UO. 
Vasey  v.  Ti-ustees,  124. 
Vason  V.  Ball,  184. 
Vaughan  v.  Daniels,  492. 
V.  Greer,  224, 
V.  Matlock,  135. 
Vaugbeu  v,  Haldeman,  18. 
Vangbn  v.  Stuzaker,  444. 
V.  Tate.  424. 
V.  Tracy,  214,  216. 
Veal  V.  Fortson,  382. 
Veazle  v.  Dwinel,  6. 
Vegbte  V.  Power  Co.,  1G8. 
Tenable  v.  Beaucbamp,  347. 
V.  Railway  Co.,  105,  110. 
Ventress  v.  Collins,  110. 
Verlander  v.  Harvey,  97. 
Vermont  v.  Society   for  Propagation 

of  Gospel,  176. 
Verner  v.  Beltz,  195. 
Vernon  v.  Smitb,  135,  136. 

v.  Wrigbt,  38. 
Vernon  Irrigation  Co.  v.  City  of  Los 

Angeles,  869,  370. 
Vernon's  Case,  108. 
Verona  Borougb  v.  Allegheny  Val.  R. 

R..  354. 
Verplanck  v.  Wrigbt,  137. 
Vest  V.  Micbie,  213,  214. 
Vickers  v.  Heui-y,  104. 

V.  Leigb,  87. 
Vidal  V.  Girard,  275. 

V.  Girard's  Ex'rs,  263. 
Viele  V.  Judson,  452. 
Villa  V.  Pico,  119. 
Village  of  Brooklyn  v.  Smith,  4,  6. 
Village  of  Dwigbt  v.  Hayes,  168. 
Vincent  v.  Spooner,  108. 
Vinson  v.  Gentry,  104. 
A^lautin  v.  Bumpus,  339. 
Voelckner  v.  Hudson,  94. 
Volk  V.  Eldred,  6. 
Voller  V.  Carter,  50. 
Voorbees  v,  Burcbard,  355. 

V.  McGinnis,  11,  15,  20. 
Voorhis  v.  Freeman,  14,  15. 

V.  Westervelt,  225. 
Vornberg  v.  Ewens,  115. 
Voss  V.  King  144,  160. 


Vreeland  v.  Jacobus,  90. 
Vyvyan  v.  Arthur,  136. 


w 

Waddell  v.  Ratlew,  290. 
Wade  V.  Brewing  Co.,  15. 
V.  Deray,  421. 
V.  Halligan,  138. 
V.  Johnson,  463. 
V.  Jones,  113. 
V.  Malloy,  60. 
Wadbams  v.  Swan,  455. 
Wadleigb  v.  Janvrin,  13,  14. 
Wadsworth  v.  Miller,  83. 
V.  Wadsworth,  388. 
V.  Williams,  393. 
Waesch's  Estate,  In  re,  481. 
Waffle  V.  Railroad  Co.,  372. 
Wager  v.  Wager,  419. 
Wagner  v.  Hanna,  349. 
Wable  V.  Reinbach,  371. 
Wainman  v.  Field,  325,  328. 
Wainwright  v.  McCullough,  5. 
Wait  V.  Belding,  38. 

V.  Richardson,  342. 
Wakefield  v.  Brown,  137. 
Wakeman  v.  Banks,  197. 
Waldo  V.  Cummings,  396. 
Wales'  Adm'r  v.  Bowdish's  Ex'r,  820. 
Walker  v.  Armstrong,  380. 

V.  Board,  5. 

v.  English,  239. 

V.  Fitts.  154. 

V.  Gergard,  361. 

V.  Gilbert,  135. 

V.  Gitbens,  153. 

V.  Goodsill,  207.  232. 

V.  Griswokl.  91. 

V.  Hall,  455. 

V.  Long,  83. 

V.  Mackie,  316. 

V.  Mining  Co.,  189. 

V.  Benfro,  440. 

V.  Schreiber,  215. 

V.  Schuyler,  97.  98. 

V.  Sharpe,  162. 

V.  Sherman,  15. 

V.  Stetson,  367. 

V.  Tucker,  140. 

V.  Vincent,  395, 


CASES  CITED. 


679 


[The  figures  refer  to  rages.] 


Walker  v.  Walker,  433. 
Walker's  Adm'r  v.  Deaver,  445. 
Walker's  Case,  149. 
Wall  V.  Byrne,  68. 

V.  Hinds,  17,  18,  343. 
Wallace  v.  Butts,  435. 

V.  Fletcher,  353. 

V.  Gooddall,  209. 

V.  Hall's  Heirs,  94. 

V.  Harmstad,  31,  370,  428. 

V.  Harris,  124,  43G. 

V.  Insurance  Co.,  123. 

V.  Jones,  487. 

V.  McKenzie,  213. 

V.  Miller,  33G. 

V.  Presbyterian  Church,  377. 
Wallach  v.  Van  Riswick,  400. 
Waller  v.  Mardus,  95. 

V.  Waller's  Adm'r,  89,  104. 
Wallls  V.  Harrison,  350. 

V.  Wallls,  410. 
Walls  V.  Baird,  229. 
Walmsley  v.  Jowett,  321. 

V.  Milne,  21. 
Walsh  V.  Insurance  Co.,  200. 

V.  Wallinger,  313. 
Walters  v.  Association,  124. 

V.  Hutchins'  Adm'x,  143. 

V.  People,  lis,  119. 

V.  Walters,  229. 
Walton  V.  Cronly's  Adm'r,  187. 

V.  Follansbee,  451. 

V.  Walton,  47G. 

V.  Wray,  IG. 
Walworth  v.  Jenness,  154. 
Wamble  v.  Battle,  192. 
Wansbrough  v.  Maton,  13. 
Ward  V.  Amory,  297,  313. 

T.  Cochran,  459. 

V.  Green,  23G. 

V.  Huhu,  IIG. 

V.  Montgomery,  493. 

V.  Sheppard,  64. 

V.  Thompson,  80. 

V.  Ward,  357. 

V.  Ward's  Heirs,  342. 
Warde  v.  Tuddingham,  2GG. 
Warden  v,  Adams,  209. 

V.  Jones,  394. 
Ware  v.  Cann,  395. 

V.  Richardson,  255,  256. 

V.  Ware,  72. 


Warford  v.  Noble,  104. 
Waring  v.  Loder,  197,  198. 

V.  Smyth,  429. 
Warlng's  Ex'r  v.  Waring,  273. 
Warland  v.  Colwell,  273. 
Warn  v.  Bickford,  450. 
Warner  v.  Bates,  261. 

V.  Bennett,  170,  174,  176. 

V.  Insurance  Co.,  31G,  319. 

V.  South  worth,  422. 

V.  Tanner,  55. 

V.  Van  Alstyne,  90. 
Warnock  v.  Campbell,  385. 
Warren  v.  Brown,  363. 

V.  Costello,  72. 

V.  Fenn,  193. 

V.  Frederichs,  468. 

V.  Leland,  8. 

V,  Lynch,  429.  430. 

V.  Peterson,  121. 

V.  President,    etc.,    of    Town    of 
Jacksonville,  3G2. 

V.  Tobey,  435. 
•     V.  Warren,  109. 
Washburn  v.  Burns,  338. 

V.  Cutter,  463. 

V.  Goodwin,  209. 

V.  Merrills,  187. 
Washington   Bldg.   &   Loan   Ass'n   y. 

Beaghen,  204. 
Washington  Ice  Co.  v.  Shortall,  6. 
Wass  V.  Bucknam,  73,  75,  79,  80. 
Waterbury  v.  Sturtevant,  393. 
Waterman. V.  Soper,  4. 
Waters  v.  Crabtree,  186. 

V.  Lilley,  5,  373. 

V.  Lumber  Co.,  356. 

V.  Lyon,  296. 

V.  Margerum,  51. 

V.  Tazewell,  78. 
Watkins  v.  Edwards,  217. 

V.  Goodall,  142. 

V.  Green,  60,  341,  468. 

V.  Hill.  229. 

V.  Holman,  41. 

V.  Nash,  436. 

V.  Spoull,  126. 

V.  Thornton,  75,  79. 
Watriss  v.  Bank,  23. 
Watson  V.  Atkins,  139. 

V.  Foxon,  287. 

V.  Gray,  866. 


680 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Watson  V.  Hunk  Ins,  148. 

V.  Hunler,  145. 

V.  O'Hern,  133. 

V.  Peters,  422. 

V.  Smith,  301. 

V.  Speuce,  246. 

V.  Watson,  76,  80,  453. 
Watson's  Estate,  In  re,  86. 
Watteugel  v.  Schultz,  198. 
Watters  v.  Bredln,  170,  419. 

V.  Jordan,  103. 
Watts  V.  Ball,  78. 

V.  Coffin,  375. 

V.  Kelson,  3.j1. 
Waj-raau  v.  Jones,  207. 
Wead  V.  Larkin,  441. 
Wea  Gas,  Coal  &  Oil  Co.  v.  Franklin 

Land  Co.,  123. 
Weale  v.  Lower,  292. 
Weare  v.  Johnson,  127. 
Weatherhead  v.  Stodd;ird,  28S. 
Weaver  v.  Brown,  194. 

V.  Crenshaw,  94. 

V.  Fisher,  270. 

V.  Gregg,  93. 

V.  Sturtevaut,  95. 
Webb  V.  Archibald,  474, 

V.  Bird,  352.' 

V.  Den,  417. 

V.  Hayner,  118,  122,  124. 

V.  Honnor,  317. 

V.  Jiggs,  378. 

V.  Mullins,  417. 

V.  Rice,  187. 

V.  Robinson,  193. 

V.  Russel,  152. 

V.  Townsend,  87. 

T.  Ti'ustees,  77. 
Webber  v.  Boom  Co.,  423. 

V.  Clarke,  460. 

V.  Ramsey,  223. 
Weber  v.  Anderson,  467. 

V.  Huerstel,  182. 
Webster  v.  Calden,  212. 

V.  Cooper.  172,  295. 

V.  Ellsworth,  79. 

V.  Gilman,  07,  475. 

V.  McCuUough,  193. 

V.  Morris,  261. 
V.  Nichols,  147. 
V.  Peet,  66. 
V.  Trust  Co.,  122. 


Webster  v.  Vandeventer,  343. 
V.   Van  Sleeubergh,  213,  217. 
V.  Webster,  61,  63. 
V.  Wiggin,  474. 
Webster's  Trustee  v.  Webster,  38. 
Wedekind  v.  Hallenberg,  288. 
Wedge  V.  Moore,  89. 
Weed  V.  Lindsay,  156. 
Weed  Sewing  Mach.  Co.  v.  Emerson, 

211. 
Weeks  v.  Thomas,  200. 
Weeton  v.  Woodcock,  22. 
Wehrniann  v.  Conklin,  452. 
Weiner  v.  Heintz,  237. 
Weir  V.  Mosher,  230. 
V.  Railroad  Co.,  495. 
V.  Smith.  316. 
V.  Tate.  87,  89.  93. 
Weise  v.  Smith,  6. 
Weiser  v.  Weiser,  346,  453. 
Weisinger  v.  Murphy,  80. 
Welborn  v.  Anderson,  461. 
Welch  V.  Adams,  144. 
V.  Allen,  262. 
V.  Anderson,  96,  109. 
V.  Button,  412. 
V.  Phillips,  183. 
V.  Wilcox,  356. 
Welch's  Appeal,  345. 
Welch's  Heirs  v.  Chandler,  78. 
Welcome  v.  Upton,  375. 
Weld  V.  Traip,  133. 
Welder  v.  McComb,  144. 
Weldon  v.  Tollman,  228,  238. 
Welland  Canal  Co.  v.  Hathaway,  450. 
Weller  v.  Weller,  77,  88. 
Welles  V.  Cowles,  25. 

V.  Olcott,  48. 
Wells  V.  Dillard,  418. 
V.  Heath,  329. 
V.  Hedenberg,  420. 
V.  Ody,  363. 
V.  Prince,  468. 
V.  Ritter,  286. 
V.  Thompson,  74,  76,  81. 
V.  Tolman,  351,  356. 
V.  Wells,  476. 
Welsh  V.  Foster,  298. 
V.  Solenberger,  80. 
V.  Welsh,  392. 
Wendell  v.  Crandall,  288. 

V.  "Van  Rensselaer,  451,  452. 


CASES   CITED. 


681 


[The  figures  refer  to  pages.] 


Wentworth  y.  Wentworth,  96. 
West  V.  Bancroft,  362. 

V.  Bemey,  322. 

V.  Stewart,  448. 

V.  Ward,   116,  117. 

V.  Williams,  306. 
Westchester  Fire  Ins.  Co.  v.  Foster, 

198. 
Westcott  V.  Campbell,  97. 

V.  Delano,  8. 
West  Covington  v.  Freliing,  423. 
West  Cumberland  Iron  &.  Steel  Co.  v. 

Kenyon,  871. 
Western  Boot  &  Shoe  Co.  v.  Gannon, 

131. 
Western  Maryland  Railroad  Land  & 

Imp.  Co.  V.  Goodwin,  249. 
Western    Massachusetts    Ins.    Co.    v. 

Riker,  198. 
Western  Min.  &  Manuf'g  Co.  v.  Pey- 

tona  Cannel  Coal  Co.,  448. 
Western  N.  C.  Ry.  Co.  v.  Deal,  16,  19. 
Western  R.  Coi"p.  v.  Bat>cocli,  434. 
Western  Transp.  Co.  v.  Lansing,  135. 
Weston  V.  Sampson,  5. 

V.  Weston,  18. 
West  I'oint  Iron  Co.  v.  Raymert,  418. 
West  River  Bank  v.  Gale,  118. 
West  River  Bridge  Co.  v.  Dix.  379,  495. 
West's  Appeal,  230. 
West  Shore  Mills  Co.  v.  Edwards,  144. 
Wettig  V.  Bowman,  493. 
Wetz  V.  Beard.  119,  121. 
Wetzel  V.  Richcreek,  442,  444. 
Weynand  v.  Lutz,  351. 
W^halen  v.  Cadman,  113. 
Whaley  v.  Whaley,  267. 
Wheat  V.  Morris,  343. 
Wheatland  v.  Dodge,  48. 
Wheatley  v.  Chrisman,  369. 
Wheatley's  Heirs  v.  Calhoun,  85. 
Wheaton  v.  Andress,  57. 
Wheeldon  t.  Burrows,  360. 
Wheeler  v.  Gorham,  59. 

V.  Hotchklss,  81. 

V.  Insurance  Co.,  198. 

V.  Kirtland.  105. 

V.  Morris,  91. 

V.  Smith,  277. 

V.  Walker,  170,  177. 
Wheelwright  v.  Freeman,  244. 

V.  Wheelwright,  434. 


Whipple  V.  Fowler,  210. 
Whitaker  v.  Brown,  417,  418. 

V.  Miller,  217. 

V.  Shooting  Club,  46a 
Whitbeck  v.  Cook,  444. 
Whitby  V.  Duffy,  419. 

y.  Mitchell,  327. 
Whltcomb  V.  Taylor,  280. 
White  V.  Amdt,  20,  22. 

y.  Bass,  363. 

y.  Bond,  234. 

y.  Brown,  199. 

y.  Clarke,  94. 

y.  Cutler,  61,  87,  lOL 

y.  Davidson,  431, 

y.  Denman,  220. 

y.  Fitzgerald,  2bX 

y.  Foster,  214.  222. 

y.  Godfrey,  422. 

y.  Gouldin's  Ex'rs,  72. 

y.  Hampton,  231. 

y.  Hicks,  316. 

v.  Howard,  277,  474. 

V.  Kinley,  125. 

v.  Maynard,  163. 

V.  Moses,  487. 

v.  Patten,  446,  455. 

V.  Railway  Co.,  168. 

V.  Rittenmyer,  184. 

y.  Story,  98. 

V.  White,  103.  217. 

V.  Whitney,  448. 

v.  Williams,  193,  194,  424. 

V.  Willis,  87. 
Whiteaker  y.  Belt,  104,  111, 
Whited  V.  Pearson,  110. 
Whitehead  v.  Bennett,  16. 

y,  Foley,  461. 

y.  Hall,  235. 

y.  Middleton,  91. 

y.  Rennett,  325. 
Whitelock  V.  Hutchinson,  873. 
White's  Adm'r  v.  White,  114. 
White's  Appeal,  12. 
White's  Bank  of  Buffalo  y.  Nichols, 

422. 
Whitesides  y.  Cooper,  287,  447. 
Whitfield  y.  Bewlt,  66. 
Whiting  v.  Adams,  201, 

V.  Bank,  490. 

v.  Brastow,  13. 

V.  Edmunds,  464. 


582 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Whiting  ▼.  Gould,  2G2,  263,  267. 
V.  Xichols,  111. 
V.  Whiting,  262. 
Whitley  V.  Gough,  409. 
Whltlook's  Case,  319. 
Whitmarsh  v.  Cutting,  9. 

V.  Walker,  8. 
Whltmire  v.  Wright,  87. 
Whitney  v.  Allaire,  133. 
V.  Buckman,  184. 
V.  McKlnney,  244. 
V.  Marshall,  85. 
V.  Olney,  426. 
V.  Parker,  346. 
V.  Salter,  289. 
Whittacre  v.  Fuller,  229. 
Whittelsey  v.  Hughes,  249. 
Whittlesey  v.  Fuller.  338. 
Whyddon's  Case,  436. 
Whyte  V.  Mayor,  etc.,  of  Nashville,  101, 

102. 
Wickham  v.  Hawker,  373. 
WIckliffe  V.  Ensor,  460. 
WIckllffe's  Ex'rs  v.  Preston,  477. 
Wickman  v.  Robinson,  194. 
WIggenhom  v.  Kountz,  5. 
Wiggins  V.  Chance,  121. 
V.  Klrby,  460. 
V.  Lusk,  434. 
V.  McCleary,  358. 
Wight  V.  Leigh,  259. 

V.  Shaw,  454. 
Wlghtman  v.  Laborde,  103. 

V.  Schleifer,  106. 
Wilber  v.  Sisson,  154. 
Wilburn  v.  SpoEford,  321. 
Wilcox  V.  Bates,  187,  188. 
V.  Cate,  142. 
V.  Hill,  214. 
V.  Randall,  106.  407. 
V.  Wheeler,  37. 
V.  Wilcox,  110. 
Wilcoxon  V.  Osborn,  438, 
Wilde  V.  Cantillon,  165. 
Wilder  V.  Haughey,  116. 
V.  House,  165. 
V.  Ireland,  443. 
V.  Ranney,  314. 
Wlldey  V.  Bonney's  Lessee,  344. 
Wiles  V.  Wiles,  72. 
Wiley  V.  Ewalt,  385. 
V.  Sirdorus,  417. 


Wilken  V.  Young,  338,  343. 
Wilkes  V.  Holmes,  318. 

V.  Leuson,  427. 
V.  Lion,  285. 
Wilkes-Barre  v.  Wyoming  Historical 

&  Geological  Soc,  37. 
Wilkins  v.  Jewett,  367. 
Wilkinson  v.  Buist,  317. 

V.  Duncan,  325,  828. 

V.  Haygarth,  342. 

V,  Parish,  03. 

V.  Proud,  374. 

V.  Scott,  427. 

V.  Suplee.  351. 

V.  W^ilkinson,  64. 
Wllks  V.  Back,  432. 
Willard,  In  re,  234. 

V,  Cramer,  438. 

V.  Harvey,  230. 

V.  Olcott.  175. 

V.  Reas,  192. 

V.  Rogers,  146. 

V.  Warren,  145. 

V.  WMllard,  345. 

V.  Worsham,  208. 
Willcox  V.  Foster,  230. 
Willets  V.  Burgess,  206. 
Willey  V.  Laraway,  111. 
William  Deering  &  Co.  v.  Beard,  121. 
Williams  v.  Angell,  294. 

V.  Barber,  353. 

V.  Barrett,  89. 

V.  Chambers-Roy  Co.,  189. 

V.  Clark,  356. 

V.  Coade,  267. 

V.  Deriar,  159. 

V.  Dorris,  119. 

V.  Downing,  407. 

V.  Earle.  136. 

V.  Evans,  272. 

V.  Everham,  207. 

V.  FoUett,  241. 

V.  Green,  436. 

V.  Haddock,  24. 

V.  Hall,  118,  425. 

V.  Hayward,  377. 

V.  Insurance  Co.,  199. 

V.  James,  3(>1. 

V.  Jenkins,  117. 

V.  KeiT,  247. 

V.  Kimball,  479. 
y.  McAliley,  467. 


CASES   CITED. 


5S3 


[The  figures  refer  to  pages.] 


Williams  V.  McCarty,  193. 
V.  Martzger,  241. 
V.  Merslion,  150. 
V.  Moody,  207. 
V.  Holland,  3U9. 
■  V.  Pollard,  487. 
V.  Railroad  Co.,  302. 
V.  Hand,  4G6, 
V.  Safford,  356,  3G1. 
V.  Shelden,  340. 
V.  Smith.  219. 
V.  Starr,  123,  229,  429. 
V.  Thurlow.  207, 
V.  Vanderbilt,  152,  153. 
V.  Vreeland,  271. 
V.  Washington,  249. 
V.  Wethered,  116. 
V.  Whitaker,  114. 
r,  Willis,  118. 
V.  Woodard,  319. 
V.  Woods,  90. 
Williams'  Appeal,  377. 
Williams'  Case,  78,  99. 
Williamson  v.  Brown,  214. 
V.  Hall,  424.  425. 
V.  Jones,  4,  64. 
V.  Railway  Co.,  15. 
V.  Wachenheim,  393. 
Williamston  &  T.  Ry.  Co.  v.  Battle, 

168. 
Williard  v.  Ware,  316. 
Willingham  v.  Hardin,  223. 
Willion  V.  Berkley,  46,  47. 
Willis  V.  Bucher,  49. 

V.  City  of  Perry,  371. 
V.  Gay,  193. 
V.  Henderson,  246. 
V.  Martin,  309. 
Willison  V.  Watkins,  158. 
Wllloughby  V.  Horridge,-  380. 
Wilson  V.  Beckwith,  426. 
V.  Bigger,  385. 
V.  Branch,  386. 
V.  Cochran,  113,  443. 
V.  Denig,  290. 
V.  Dresser,  34. 
V.  Duguld,  313. 
V.  Edmonds,  61,  65. 
T.  Forbes,  6, 
V.  Goldstein,  151. 
V.  Henfy,  462. 
V.  Hunter,  185,  214,  485. 


Wilson  V.  Johnson,  420. 
V.  McCullongh,  215. 
V.  Mackreth,  375. 
V.  Martin,  163. 
V.  Miller,  214. 
V.  Oatman,  97. 
V.  Parker,  61,  289. 
V.  Patrick,  188. 
V.  Piggott,  313. 
V.  Proctor,  115. 
V.  Traer.  438. 
V.  Troup,  311,  319,  32L 
V.  Welch,  5. 
V.  White,  302. 
V.  Wilson,  184. 
V.  Wright,  185. 
Wilsons  V.  Doe,  491. 
Wilt  V.  Franklin,  435. 
Wilton  V.  Mayberry,  204, 
Wimbledon     and     Putney     Commons 

Conservators  v.  Dixon,  360. 
Wimer  v,  Simmons,  370. 
AVinaus  v.  Peebles,  387. 
Winborne  v.  Downing,  440. 
Winchester  v.  Charter,  393. 
Wineman  v.  Hughson,  148. 

r.  Phillips,  149. 
Winlield  v.  llenning,  351. 
Wing  V,  Gray,  17. 
Winkler  v.  Winkler's  Ex'rs,  78. 
Winn  V.  Abies,  465. 
V.  Ingilby,  18. 
V.  Strickland,  144. 
Winne,  In  re,  74. 
Winona  &  St.  P.  R.  Co.  v.  St.  Paul  & 

S.  C.  R.  Co.,  273. 
Wlnslow  V.  Insurance  Co.,  15,  21. 
Winsor  v.  Mills,  395. 
Winsted  Sav.  Bank  v.  Spencer,  439. 
Winter  v.  Brockwell,  358. 
Winterbottom  v.  Pattison,  433. 
Wintermute  v.  Light,  8, 
Winters  v.  Mining  Co.,  208,  242. 
Winthrop  v.  Fairbanlis,  418, 

V.  Minot,  344. 
Winton's  Appeal,  248. 
Wiscot's  Case.  50.  334. 
Wisdom  V.  Reeves,  429. 
Wiseman  v.  Lucksinger,  166,  350,  351, 

353, 
Wissler  v.  Ilershey,  360. 
Wistar's  Appeal,  346. 


584 


CASES   CITED. 


(The  figures  refer  lo  pages.] 


Wltham  V.  Broonor,  255. 

V.  Perkins,  74. 
Withers  v.  Baird,  438. 

V.  Jenkius,  75,  77-79. 

V.  Yeadon,  313. 
Withy  V.  Mumford,  449. 
Witmark  v.   Railroad  Co.,  153. 
Witt  V.  Rice,  204. 
Witter  V.  Damitz,  3G2. 
Wofford  V.  McKiuna,  420. 
Wolcott  V.  Sullivan,  135. 
W^olf  V.  Fleiscbacker,  110. 

V.  Guftey,  152. 

V,  Holton,  143. 

V.  Johnson.  144. 

V.  Wolf.  344. 
Wolfe  V.  Frost,  IGG,  349. 

V.  Van  Nostrand,  302. 
Wood  V.  Appal,  423. 

V.  Armour,  195. 

V.  Bayard,  53. 

V.  Beach,  410. 

V.  Chambers,  393. 

V.  Chapin,  410. 

V.  Clark,  393. 

V.  Fleet,  344. 

V.  Fowler,  6,  423. 

V.  Griffin,  143. 

V.  Hawkins,  121. 

V.  Hubbell,  133. 

V.  Keyes,  98. 

V.  Leadbitter,  1U8. 

V.  Manley,  16G,  167. 

V.  Mann,  213. 

V.  Manufacturing  Co.,  185. 

V.  Morehouse,  247. 

V.  Noack,  154. 

T.  Phillips,  340. 

V.  Reed.  353. 

V.  Saunders,  35G. 

V.  Town  of  Edenton,  6. 

V.  Trask,  184,  210. 

V.  Truax,  383. 

V.  Wallace,  91. 

V.  Wand.  3G9.  372. 

V.  Whelen,  20U. 

V.  Wood,  301. 
Woodbury  v.  Aikin,  238. 

V.  Luddy.  121. 

V.  I'arshley.  168. 

V.  Short,  471. 
Woodham  v.  Bank,  21, 


Woodhull  V.  Kosonthal,  147. 
Woodman  v.  Pitman,  G. 
Woodruff  V.  MoHarry,  438. 

V.  Mutschler,  227. 

V.  Robb,  190. 
Woods,  In  re,  330. 

V.  Dille,  262. 

V.  Hilderbrand,  184. 

V.  Huntlngford,  204. 

V.  Shields,  248. 

V.  Wallace.  91. 

V.  Woods,  233. 
Woodward  v.  Boro,  221. 

V.  Dowse,  103. 

V.  Phillips,  201. 

V.  Pickett,  196. 
Woodward-Holmes  Co.  v.  Nudd,  93. 
Woodworth  v.  Carman,  188. 

V.  Paige,  106. 
Wooldridge  v.  Lucas,  85. 
Woolever  v.  Knapp,  341. 
Wooliscroft  V.  Norton,  136. 
Woolley  V.  Holt,  184. 
Woolsey  v.  Donnelly,  161. 
Wooten  V.  Bellinger,  192. 
Worcester  Nat.  Bank  v.  Cheney,  238. 
Word  V.  Box,  462. 
Workman  v.  Greening,  187,  188. 

V.  MlfHln,  153. 
Worman  v.  Teagarden,  170. 
Wormley  v.  Wormley,  269. 
Worrell  v.  Forsyth,  108. 
Worthiugton  v.  Gimson,  360. 
Worthy  v.  Johnson,  487. 
Wragg  V.  Comptroller  General,  192. 
Wren  v.  Bradley,  173. 
Wright  V.  Brown,  489. 

V.  Cartwrlght,  286. 

V.  Ditzler,  120. 

V.  Douglass,  261. 

V.  Dunning,  119,  122. 

V.  Gelvln,  85. 

V.  Germain.  383. 

V.  Henderson,  184. 

V.  Herron.  49,  77. 

V.  Jennings,  60. 

V.  Lake,  19(5. 

V.  Langley,  217. 

V.  Macdonell.  23. 

V.  Macdonnell,  143. 

V.  Pearson,  258. 

V.  Sperry,  195. 


CASES  CITED. 


585 


[The  figures  refer  to  pages.] 


Wright  V.  Tallmadge,  309. 

V.  Tichenor,  461. 

V.  Trevezaut,  132. 

V.  Westheimer.  119. 

V.  Wright,  38,  305,  312. 
Wronkow  v.  Oakley,  107. 
Wuestcott  V,  Seymour,  421. 
Wunderle  v.  Wunderle,  388. 
Wusthoff  V.  Dracourt,  57. 
W.  U.  Tel.  Co.  V.  Bullard,  166. 
Wyatt  V.  Barwell,  218. 

V.  Irrigation  Co.,  34. 

V.  Smith.  80. 
Wyatt's  Estate.  60. 
Wyman  v.  Brigden,  41. 

V.  Brown.  255,  2U8,  299. 

V.  Hooper,  210. 
Wynkoop  v.  Burger,  360,  361. 

V.  Cowing,  187. 
Wynne  v.  Hudson,  121, 124. 


Yale  V.  Flanders,  430. 

V.  Seely,  8. 
Yancey  v.  Tatlock,  446. 
Yard's  Appeal,  328. 
Yaryan  v.  Shriner,  192. 
Yates  V.  Kinney,  154. 

V.  Van  De  Vogei't,  459. 
Yearworth  v.  Pierce,  17. 
Yeates  v.  Gill,  478. 
Yeaton  v.  Roberts,  284. 
Yellow  River  Imp.  Co.  r.  Wood  Co. 

379. 
i:elverton  v.  Hlllard,  466. 
Young,  In  re,  288. 


Young  V. ,  370. 

V.  Anon.,  370. 

V.  Board  man,  109. 

V.  City  of  Boston,  163. 

V.  Guy,  224. 

V.  Langbein,  77. 

V.  Miles'  Ex'rs,  272» 

V.  Miller,  244. 

V.  Morehead,  92. 

V.  Morgan,  203. 

V.  Omohundro,  200. 

V.  Ruth,  209. 

V.  Spencer,  65. 

V.  Tarbell,  91.  101. 

V.  Thrasher,  93,  97. 

V.  Young,  305. 
Youngblood  v.  Eubank,  19. 

V.  Vastine,  224. 
Younge  v.  Guilbeau,  435. 
Younghusband  v.  Gisborne,  397. 
Youngman  v.  Railroad  Co.,  1U6,  218. 
Younts  V.  Starnes,  455. 
Youse  V.  Norcum,  386. 


z 

Zabrlskie  v.  Railroad  Co.,  273. 
Zacbarias  v.  Zaeharias,  274. 
Zackry  v.  Lockard,  83. 
Zaegel  v.  Kuster,  234. 
Zane  v.  Kennedy,  319. 
Zebach  v.  Smith,  314. 
Zimmerman  v.  Lebo,  109. 
Zoller  V.  Ide,  430. 
Zorntlein  v.  Bram,  338. 
Zuver  T.  Lyons,  26L. 


INDEX. 


[THE    FIGURES    REFER   TO    PAGES.] 


A 

ABANDONMENT, 

of  homestead,  121. 
destruction  of  easements  by,  357. 
of  possession  by  joint  disseisor,  460. 
of  title  by  adverse  possession,  4G9. 

ACCEPTANCE. 
of  deeds,  433. 

ACCOUNTING, 

by  mortg-agee,  199. 

debits,  200. 

credits,    201. 

annual  rests,  202. 
between  co-tenants,  341. 

ACCRETION, 
title  by,  470. 
alluvion,  470. 

ACCUMULATIONS, 
rule  against,  330. 

application  to  charitable  trusts,  276. 

ACKNOWLEDGMENT, 
of  deeds,  436. 

ACTIONS, 

for  breach  of  covenant  of  warranty,  449. 
real  and  personal,  1. 
affecting  joint  estates,  343. 

ACTIVE  TRUSTS, 
Incidents  of,  272. 

ACTIVE  USES, 

statute  of  uses  does  not  operate  on,  254. 

REAL  PROP.  (587) 


588  INDEX 

[The  figures  refer  to  pages.] 

ACTUAL  NOTICE,  213. 

ADAPTATION   FOR  USE. 

as  test  of  character  of  fixture,  16. 

ADVANCEMENTS,  481. 

ADVERSE  POSSESSION, 

by  mortgagor  against  mortgagee,  195. 

against  remahider-man,  464. 

by  joint  disseisors,  466. 

possession  by  trustee  not,  274. 

abolished  under  system  of  registered  titles,  414. 

title  by,  456. 

requisites  of,  456. 

seisin  and  disseisin,  458. 

effect  of  descent  cast,  459. 

must  be  actual,  459. 

ouster  necessary,  459. 

color  of  title,  460. 

disseisin,  Intention  necessary,  460. 

must  be  visible  or  notorious,  460. 

what  possession  is  adverse,  463. 

when  possession  up  to  division  fence  is  adverse,  468. 

must  be  exclusive,  465. 

must  be  continuous,  466. 
tacking,  466. 

against  whom  possession  is  aa verse,  468. 

length  of  possession  necessary,  469. 

abandonment,  469. 

ADVOWSONS,  849. 

AFFINITY. 

relationship  by,  483. 

AFFIRMATIVE  EASEMENTS.  354. 

AFTER-ACQUIRED  PROPERTY, 

may  be  mortgaged,  185. 
AFTER-ACQUIRED  TITLE, 

mortgagee  may  set  up  against  his  assignee,  211. 

AGENTS, 

leases  by,  131. 

AGREEMENT  TO  MORTGAGE^ 

treated  as  a  mortgage,  191. 
AGRICULTURAL  FIXTURES,  17. 


INDEX.  689 

[Tbe  figures  refer  'co  pages.] 


AIDS, 

incidents  of  tenure,  29. 

ALIENAGE, 

as  defeating  dower,  103. 

ALIENATION, 

see  "Restraints  on  Alienation.'* 
history  of  right  of,  390. 
power  of,  when  acquired,  45. 
of  fee  simple,  39. 

voluntary  and  involuntary,  40. 
of  life  estates,  59. 
of  estate  during  coverture,  72. 
of  homestead,  122. 
of  tenancies  from  year  to  year,  160. 
of  future  estates,  305. 
of  franchises,  379. 

destruction  of  common  appurtenant  by,  3T.j. 
by  disseisor,  467. 
clauses  forbidding,  394. 
clauses  of  forfeiture  for,  394. 

ALIENS, 

capacity  of  to  hold  and  convey  realty,  387. 

inheritance  by,  388. 

naturalized  citizens,  388. 

title  of  divested  by  office  found,  388. 

ALLODIAL, 

land  declared  to  be,  in  many  states,  31. 

ALLUVION, 
title  by,  470. 

ALTERATION  OF  ESTATE, 
revocation  of  devise  by,  478. 

ALTERATIONS, 
in  deeds,  428. 

ALTERNATE  REMAINDERS,  287. 

AMBIGUITIES, 

latent,  in  description  of  property,  420. 

A.NCESTOR, 
defined,  479. 

ANCESTRAL  LANDS  AND  COLLATERAL  HEIRS,  483. 


690  INDEX. 

[The  figures  refer  to  pa^es.] 

ANCIENT  DEMESNE, 

defined,  27. 
ANNEXATION, 

as  test  of  character  of  fixture,  18. 
constructive,  14. 
party  making,  19. 
ANNUAL  CROPS. 

not  real  property,  7. 

what  are,  8. 

are  Incorporeal  hereditaments,  349. 
ANNULMENT  OF  MARRIAGE. 

defeating  dower,  104. 

APPENDANT  POWERS,  310. 
APPENDANT  EASEMENTS,  354. 

APPOINTEES, 

of  power  defined,  307. 
classes  of   powers  as  to,  311. 

APPOINTMENT, 

powers  of.  309. 

APPORTIONMENT, 
of  rent,  377. 

in  life  estates,  60. 

in  estates  per  autre  vie,  68. 

in  estates  in  dower,  102. 

APPURTENANCES,  425. 

APPURTENANT  EASEMENTS,  354. 

ASCENDING  LINES, 

in  title  by  descent,  4S2. 

ASSIGNEE, 

of  equity  of  redemption,  rights  of,  206. 

ASSIGNMENT, 

of  dower,  95. 

of  common  right,  96. 

against  common  right,  96. 

when  value  estimated,  97. 

method  of  division,  98. 

by  whom,  99. 

recovery  by  action,  100. 
of  lease,  148. 

liability  of  assignee,  149, 


,  INDEX.  591 

[The  figures  refer  to  pages.] 

ASSIGNMENT— Continued, 

of  equity  of  redemption,  20a. 
by  operation  of  law,  208, 
of  mortgage,  209. 

by  operation  of  law,  21L 
of  mortgage  debt,  210. 
of  trustee's  title,  273. 
a  common-law  conveyance,  409. 

ASSUMED  NAME, 

grantee  in  deed  may  be  designated  by,  416. 

ATTACHMENT, 

mortgagee's  interest  before  foreclosure  not  subject  to,  212. 

ATTORNEY, 

power  of,  to  execute  deed,  431. 

AT  WILL, 

see  "Tenancies  at  Will,"  156. 

AUSTRALIAN  SYSTEM, 
of  registering  titles.  413. 

n 

BANKRUPT  AND  INSOLVENT  LAWS,  394. 

BARGAIN  AND  SALE,  410. 

BARRING  ESTATE  TAIL,  50. 

BASE  FEES,  178. 

BENEFICIAL  POWER,  320. 

BENEFICIARY, 
defined,  2G0. 
in  charitable  trusts  may  be^  indefinite,  276w 

BLANKS, 

fiUing,  in  deeds,  428. 

BLOOD, 

see  "Half  Blood." 

BOND  FOR  TITLE, 

may  be  mortgaged,  185. 

assignment  of,  may  be  a  mortgage,  191 

BOOM  COMPANIES, 
rights  of,  370. 

BOUNDARIES, 

desci'iption  in  deeds,  419. 


592  INDEX. 

[The  figures  refer  to  page«.| 

BREACH, 

of  covenant  of  warranty,  action  for,  449. 

BREACH  OF  CONDITIONS, 

termination  of  estates  on  condition,  ITOw 

BRIDGES, 

franchises  for,  380. 

BUILDINGS, 

horizontal  ownership  of,  366, 

0 

CAESAREAN  OPERATION,  74. 
CANONS  OF  DESCENT,  482. 
CAPACITY, 

personal,  to  hold  and  convey  realty,  SSI- 
CERTIFICATE, 

of  acluiowledgment,  438. 

and  patent,  402. 

of  purchase  in  tax  titles,  493. 

CESTUI  QUE  TRUST, 
defined,  260. 
rig'hts  of,  271, 
interest  of,  273, 
is  disseised  by  disseisin  of  trustee,  468. 

CHARGES, 

on  land  under  registered  titles,  413. 

CHARITABLE  TRUSTS, 
defined,  274. 
distinguished  from  private,  274. 

beneficiary  indefinite,  276. 

doctrine  of  cy-pres,  276. 

perpetuities  and  accumulations,  276. 
creation  of,  275. 
objects  of,  275. 

CHARITIES, 
defined.  275, 
gifts  to,  application  of  rule  against  perpetuitle«,  320 

CHATTEL  FIXTURES, 
defined,  10. 


INDEX.  593 

[The  figures  refer  to  pageau] 

CHATTEL  INTERESTS, 

estate  tail  in,. 49. 

statute  of  uses  does  not  operate  on,  254. 
CHATTELS  REAL, 

defined,  24. 

CHILDREN, 

illegitimate,   480. 
posthumous,  480. 

CIVIL  LAW, 

computation  of  relationship  by,  484. 
CLAIM  OF  TITLE, 

necessary  in  adverse  possession,  465. 
CLASS, 

limitations  to,  and  rule  against  perpetuities,  328 

COLLATERAL  HEIRS, 
defined,  484. 
and  ancestral  lands,  483. 

COLLATERAL  POWERS,  311. 

COLOR  OF  TITLE,  460. 

COMMON, 

tenancies  in,  335. 
rights  of  defined,  373. 
of  estovers,  373. 
of  pasture,  373. 

appurtenant  and  appendant,  373, 
of  piscary,  373. 
of  turbary,  373. 
rights  of,  in  United  States,  375. 

COMMON  LAW, 

future  estates  at,  279. 

computation  of  relationship  by,  484. 

conveyances,  405. 

powers,  308. 

theory  of  mortgage,  183. 

COMMON  RECOVERY,  50. 

conveyance  by  married  woman  by,  888. 
COMMUNITY  SYSTEM,  338. 
COMPENSATION, 

for  land  taken  under  right  of  eminent  domain,  496. 

REAL  PROP. — 38 


594  INDEX. 

[The  figures  refer  to  pages.] 

COMPULSORY  PARTITION,  344. 

CONDEMNATION  OF  LAND, 

under  power  of  eminent  domain,  494. 

CONDITION, 

estates  on,  see  "Estates  on  Condition." 

CONDITIONAL  FEES, 
what  are,  45. 

CONDITIONS, 

precedent  and  subsequent,  170. 

void,  172. 
effect,  173. 

breach  of,  in  estates  on  condition.  175. 
relief  against,  175. 

subject  to  rule  against  perpetuities,  320. 

against  alienation,  395. 

of  forfeiture  for  alienation,  395. 
CONFIRMATION, 

a  common-law  conveyance,  408. 
CONFISCATION  AND  ESCHEAT, 

acquisition  of  title  by,  399. 
CONGRESSIONAL  SURVEY,  402. 
CONQUEST, 

acquisition  of  title  by,  399. 
CONSANGUINITY, 

relationship  by,  483. 
CONSIDERATION, 

for  deeds,  427. 
CONSTRUCTION, 

of  description  in  deed,  420. 
CONSTRUCTIVE  NOTICE, 

by  possession,  216. 

by  lis  pendens,  218. 

by  registration,  218. 
CONSTRUCTIVE  POSSESSION, 

seisin  in  law  is,  32. 

in  acquisition  of  title  by  adverse  possession,  480. 

CONSTRUCTIVE  TRUSTS. 

see  "Trusts." 
CONTINGENCY, 

on  which  remainder  may  depend,  292. 


INDEX.  696 

[The  flgaires  refer  to  pages.]  ^ 


CONTINGENT  INTERESTS, 

rule  against  pei-petuities  applies  to,  320. 

CONTINGENT   REMAINDERS, 
Bee  "Remainders," 

CONTINUOUS  EASEMENTS,  354. 

CONTINUOUS  POSSESSION, 

in  acquisition  of  title  by  adverse  possession,  468. 
tacking,  466. 

CONTRIBUTION. 

to  redeem  mortgage,  236. 
CONVENTIONAL  EASEMENTS,  354. 
CONVENTIONAL  LIFE  ESTATES,  5a. 

CONVEYANCES, 

registration,  see  "Registration." 
priority  of,  212. 

actual  notice,  213. 
implied  notice,  215. 
constructive  notice,  216. 
possession,  216. 
recitals  in  title  deeds.  2ia. 
lis  pendens,  218. 
registration,  218. 
fraudulent  392. 
kinds  of,  405. 

primary  and  secondary,  405. 
at  common  law,  405. 
feoffment,  405. 
gift,  406. 
grant,  407. 
lease,  407. 
exchange,   407. 
partition,  408. 
release,  408. 
confirmation,  408. 
surrender,  408. 
assignment,  409, 
defeasance.   409. 
under  statute  of  uses,  409. 

covenant  to  stand  seised,  410. 
bargain  and  sale,  410. 
lease  and  release,  411. 


596  INDEX. 

[The  figures  refer  to  pages.] 

CONVEYANCES— Continued, 
modern   statutory,   411. 

warranty  and  quitclaim  deeds,  412. 
registered   titles,  412. 

certificate  of  title.  413. 
under  judicial  process,  486. 
licenses,  48G. 

by  guardian,  487. 
by  personal  representatives,  487. 
of  settled  estates,  488. 
decrees,  488. 
tax  titles,  490. 
eminent  domain,  494. 

COPARCENARY, 
estates  in,  336. 

COPARCENERS, 
lease  by,  132. 
COPYHOLD  TENURE.  29. 

CORNERS. 

when  lost,  how  located,  424. 
CORODIES,  349. 

CORPORATION, 

capacity  to  hold  and  convey  realty,  389. 

deeds  by,  how  signed,  430. 
CORPOREAL  HEREDITAMENTS,  348. 

CO-TENANTS, 

accounting  between,  341. 

COURSES  AND  DISTANCES, 
description   by,   424. 

COVENANT. 

to  stand  seised,  410. 

creation  of  easements  by,  351. 

Independent  and  dependent,  441. 

express,  rights  of  landlord  and  tenant  under.  134. 

Implied,  rights  of  landlord  and  tenant  under,  138. 

real  and  personal,  441. 

personal,    In  leases,   136. 

running  with  the  land,  in  leases.  136. 

not  subject  to  rule  against  perpetuities,  326. 
of  title,  440. 

express  and  Implied,  440. 


INDEX.  697 

[The  figures  refer  to  pages.i 


COVENANT— Continued, 
of   seisin,   442. 

how  broken,  442. 

when  broken,  442. 
against  incumbrances,  defined,  444. 

how   broken,   444. 
of  warranty,  defined,  446. 

how  broken,  446. 

action  for  breach,  449. 

estoppel  by,  454. 

special,  446. 
of  quiet  enjoyment,  448. 
for  further  assurance,  449. 

COVERTURE, 

estate  during,  70. 

power  of  husband  over  chattels  real,  71. 

power  of  husband  over  real  estate,  71. 

alienation  of,  72. 

separate  estate,  72. 

equitable  doctrine,  72. 

statutory  changes,  73. 

abolished,  73. 

CREDITORS. 

whether  constructive  trust  in  favor  of,  27L 

rights  of,  in  powers,  320. 

restraints  on  alienation  in  favor  of,  392. 

CROSS  REMAINDERS,  286. 

CURTESY, 
defined.  73. 
requisites,  73. 

birth  of  issue,  74. 

Caesarean  operation,   74. 

not  necessary  in  Pennsylvania,  75. 

marriage,  74. 

seisin  of  wife,  75. 

death  of  wife,  76. 
initiate,  74. 
consummate,  76. 
In  what  estates,  76. 

estates  of  inheritance,  76. 

determinable  estates,  77. 

equitable   estates,    77. 


598  INDEX- 

[The  figures  refer  tc  pages.] 

CURTESY— Continued, 

estates  in  expectancy,  79. 

joint  estates,  79. 
Incidents.  79. 

alienation,   80. 

liability  for  debts,  80. 
how  defeated,  81. 

alienage,  81. 

annulment  of  marriage,  81. 

conveyance   by   wife,   81. 

desertion,  81. 

devise,  81. 

forfeited  by  feoffment,  8L 
statutory  changes,  82. 

CY-PRES. 

application  of  doctrine  of,  to  charitable  trusts,  278. 

D 

DATE, 

whether  requisite  in  deeds,  428. 

DEATH  OF  HUSBAND, 
requisite  of  dower,   85. 
dower  consummate  by,  85. 

DECREE. 

for  deficiency  in  foreclosure,  24L 

of  sale  in  foreclosure,  248. 

conveyance  under,  488. 
DB  DONIS  CONDTTIONALIBUS. 

statute  of,  creating  estates  tail,  44,  46. 

DEED, 

when  required  in  creation  of  estates  for  years,  132. 
absolute  may  be  a  mortgage,  187. 
of  trust  may  be  a  mortgage,  190. 
defined,  415. 
requisites  of,  414. 

designation  of  grantee,  4ia 

granting  clause,  416. 

names  of  parties,  416. 

words  of  conveyance,  410.     • 

exceptions,  417. 

reservations,  418. 


INDEX-  599 

[The  figures  refer  to  pages.] 


DEED— Continued, 

habendum,  418. 

description  of  property,  419. 

plats  and  maps,  421. 

monuments,  422. 

courses  and  distances,  424. 

quantity,    425. 

appurtenances,  425. 
execution  of  the  writing,  426. 

what  writing  necessary,  427. 

consideration,  427 

date,  428. 

alterations,  428. 

filling  blanks,  42a 

reading,  429. 

sealing,  429. 

signing,  430. 

power  of  attorney,  431. 

Indentures  and  deeds  poll,  432» 
delivery  and  acceptance,  433. 

delivery  In  escrow,  435. 
acknowledgment,  436. 
registry,  439. 
witnesses,  439. 
estoppel   by,    453. 
under  tax  titles,  492. 
poll  and  Indenture,  432. 

DEFEASANCE, 

a  common-law  conveyance,  409. 

DEFICIENCY, 

decree  for  in  foreclosure,  241. 

DEFINITE  FAILURE  OF  ISSUE,  326. 

DEGREES  OF   RELATIONSHIP, 
how  computed,  484. 

DELIVERY, 

of  deeds.  433. 
in  escrow,  433. 

DEMESNE. 

tenants  in,  35. 

DENYING  LESSOR'S  TITLE, 
lessee  estopped,  143. 


600  INDEX. 

[The  figures  refer  to  pages.] 

DEPENDENT  COVENANTS, 
in  deeds,  441. 

DEPOSIT  OF  TITLE  DEEDS, 
may  be  a  mortgage,  192. 

DESCENDING  LINES. 
in  title  by  descent,  482. 

DESCENT. 

of  future  estates,  300. 

and  purchase,  399. 

title  by,  478. 

what  descends  to  heirs,  479. 

illegitimate  children,  480. 

posthumous  children,  480. 

advancements,  481. 

hotchpot,  482. 
canons  of,   482. 

descending  and  ascending  lines,  482. 

preference  of  males,   482. 
in  collateral  lines,  485. 

collateral  heirs  and  ancestral  lands,  483. 

per  stirpes  and   per  capita,  483. 

primogeniture,  483. 

whole  and  half  blood,  485. 
escheat,  485. 

DESCENT  CAST, 
what  Is,  459. 
effect  of,  on  right  of  entry,  439. 

DESCRIPTION  OF  PROPERTY, 
In  deeds,  419. 
In  wills,  473. 

DESTRUCTION. 

of  vested  remainders,  289. 
of  contingent  remainders,  293. 

liability  to,  removed  by  statute,  293. 
of  powers,  321. 
of  easements,  357. 
of  profits  a  prendre,  375. 
of  premises,  termination  of  estates  for  years  by,  153. 

DETERMINABLE   ESTATES, 
curtesy  in,  77. 
dower  in,  88. 


INDEX.  601 

rrhe  figures  refer  to  pages.] 

DETERMINABLE  FEES,  17a 

DEVICES, 

to  bar  dower,  105. 

DEVISES, 

executory,  see  "Executory  Devise.** 
shifting,  see  "Shifting  Devise." 
creation  of  fee  simple  by,  38. 
title  by.  472. 

requisites  of,  472. 

nature  of,  475. 

operative   words  in  wills.   473. 

what   can  be   devised,    474. 

what  law  governs,   474. 

renunciation  of,  475. 

revocation  by  alteration  of  estate,  4781. 

lapsed  devises,  477. 

DISABILITY  OF  PERSONS, 

affecting  title  by  adverse  possession,  468. 

DISCHARGE, 

of  mortgage,  227. 
by  payment,  227. 
by  performance,  227. 
by  tender,  230. 
by  merger,  231. 
by  redemption,  233. 
form  of,  238. 

DISCONTINUOUS   EASEMENTS,  354. 

DISCOVERY, 

acquisition  of  title  by  state  by,  399. 

DISSEISEE. 

leases  by,  131. 

DISSEISIN. 

by  mortgagor,  195. 

equitable  estates,  lost  by,  274. 

of  joint  owner,  340. 

what  is.  404. 
leaves  mere  right  of  entry,  458. 
giving  title  by  adverse  possession,  45i 

DISSEISOR. 

alienation  by,  467. 


602  INDEX. 

[The  figures  refer  to  pages.] 

DISTANCES, 

description  by  courses  and,  424. 

DISTRESS, 

for  rent,  145. 

an  incident  of  rent  service,  376. 

DIVISION   LINES, 

estoppel  In  pais,  453. 

DIVORCE, 

defeating  dower,  104. 

DOMESTIC  FIXTURES,  18, 

DOMINANT    ESTATE,   350. 

DONEE. 

of  estate  tail,  42. 

of  power,  307. 

classes  of  powers  as  to,  31o. 

DONOR, 

of  estate  tall,  42. 
of  power,  307. 

DOWER. 

defined,  83. 
requisites,  83. 
marriage,  84. 
seisin  of  husband,  84. 

transitory,  84. 
death  of  husband,  85. 
inchoate,  84. 
consummate,  85. 
In  what  estates,  86. 

estates  of  inheritance,  88. 
in  estate  tail,  72. 
In  rents,  87. 

lands  capable  of  enjoyment,  87. 
Inheritance  by  issue,  88. 
determinable  estates,  88. 
equitable  estates,  89. 

mortgages,  89. 
estates  in  expectancy,  91. 

dower  out  of  dower,  9L 
joint  estates,   92. 

partnership  lands,  93. 
quarantine,  94. 


INDEX.  603 

[The  figures  refer  tc  pages.] 


DOWER -Continued, 
assignment.  95. 

of  common  right,  96. 

against  common  right,  96. 

when  value  estimated,  97. 

method  of  division,  98. 

by  whom  assigned,  99. 

recovery  by  action,  100. 
Incidents,  101. 

emblements,  lOL 

estovers,  101. 

repairs,  101. 

waste,  101. 

apportionment  of  rent,   102. 

Improvements,  102. 

taxes,  102. 
how  defeated,  102. 

alienage,  108. 

elopement  and  adultery,  103. 

annulment  of  marriage,  104. 

loss  of  husband's  estate,  104. 

conveyance  by  husband,   105. 

devices  to  bar,  105. 

release  by  wife,  106. 

Jointure,  107. 

widow's  election,  109. 

testamentary  provision,  109. 
statutory  provision,   110. 

estoppel,  110. 

statute  of  limitations  and  laches,  IIL 

waste,   111. 
statutory  changes,  112. 

right  of,  not  breach  of  covenant  of  seisin,  444. 
DRUNKARDS. 

capacity  to  convey  real  property,  385. 

E 

EASEMENTS, 

defined.  349. 
essential  qualities,  350. 
distinguished  from  licenses,  350. 
dominant  estate,  350. 

servient  estate,  o50. 


604  INDEX. 

[The  figures  refer  to  pages.] 

EASEMENTS— Continued, 
creation,  350. 
by  grant,  350. 
by  parol,  351. 
by  covenants,  351. 
by  prescription,  352. 
equitable.  351. 
classification,  354. 

appendant  or  appurtenant  and  In  gross,  354. 
continuous  and  discontinuous,  354. 
natural  and  conventional,  354. 
negative  and  affirmative,  354. 
Incidents,  355. 

obstruction,  356. 
repairs,  356. 
use  of  easements,  356. 
destruction,  357. 
by  release,  357. 
by  abandonment,  357. 
by  license,  357. 
by  misuser,  357. 
by  merger,  357. 
specific,  359. 

rights  of  way,  359, 

repair  of,  361. 
highways,  361. 

dedication,  362. 
light  and  air,  363. 
lateral   and  subjacent  support,   365. 

horizontal,  ownership  of  buildings,  366. 
party  walls,  366. 
In  water,  368. 

surface  waters,  371. 
subterranean  waters,  371. 
eaves'  drip,  372. 
artificial  water  courses,  372. 
existence  of,  not  breach  of  covenant  of  seisin,  444. 
as  breach  of  covenant  against  incumbrances,  444. 

EAVES'  DRIP,  372. 

EJECTMENT. 

termination  of  estate  on  condition  by,  174. 


INDEX.  605 

[The  figures  refei-  to  pages.] 

ELECTION. 

testamentary  provision  In  lieu  of  dower,  109. 

statutory  provision  in  lieu  of  dower,  110. 
ELOPEMENT. 

defeating  dower,  103. 

EMBLEMENTS, 
what  are,  8. 
an  incident  of  life  estates,  61. 

of  estate  during  coverture,  71. 

of  dower,  101. 

of  estates  for  years,  143. 

of  tenancies  at  will,  156. 

of  tenancies  from  year  to  year,  160. 
tenant  at  sufferance  not  entitled  to,  164. 
mortgagor  no  right  to,  196. 
right  of  tenant  of  mortgagor  to,  196. 

EMINENT  DOMAIN, 

termination  of  estates  for  years  by,  153. 

taking  franchises  under,  379. 

acquisition  of  title  under,  by  state,  399. 

taking  land  under,  not  breach  of  covenant  of  warranty,  448. 

title  by,  494. 

compensation  for  land  taken  under  righi  of,  495. 

ENTAIL. 

see  "Estates  Tail." 
barred  by  common  recovery,  51. 

ENTIRETY. 

estates  in,  337. 

ENTRY. 

right  of,  to  defeat  estate  on  condition,  174,  178. 

and  possession,  foreclosure  by,  243. 

on  public  lands,  402. 
EQUITABLE  WASTE,  62. 
EQUITABLE  CONVERSION, 

defined,  23. 
EQUITABLE  EASEMENTS,  351. 
EQUITABLE  ESTATES,   251. 

curtesy  in,  77. 

dower  in,  89. 

mortgages,  89. 


606  INHEX. 

[The  figures  refer  to  pages.] 

EQCTTABLE  ESTATES— Continued, 
homestead  in,  116. 
use  and  trust  defined,  252. 
etatute  of  uses,  253. 

when  statute  does  not  operate,  254. 
classification  of  trusts,  257. 
executed  and  executory  trusts,  258. 
express  trusts,  258. 
creation,  2G0. 

limitation  of  trustee's  estate,  261. 
precatory  words,  261. 
statute  of  frauds,  262. 
parties.  263. 
Implied  trusts,  264. 

resulting  trusts,  265. 

legal  title  only  conveyed,  266. 
consideration  paid  by  another,  267. 
failure  of  object  of  trust,  267. 
deed  to  wife  or  child,  268. 
constructive  trusts,  269. 

'fraud  an  essential  element  of,  269. 
devise  procured  by  fraud,  270. 
in  favor  of  creditors,  271. 
Incidents,  271. 

active  trusts,  272. 
passive  trusts,  271. 
interest  of  trustee,  272. 
Interest  to  cestui  que  trust,  273. 
liability  for  owner's  debts,  274. 
lost  by  disseisin,  274. 
possession  by  trustee  not  adverse,  274. 
subject  to  rule  against  perpetuities,  327. 

EQUITABLE  THEORY, 
of  mortgage,  183. 

EQUITABLE   RIGHTS, 
may  be  mortgaged,  185. 

EQUITY  OF  REDEMPTION, 
no   mortgage   without,  205. 
assignment  of,  205. 

rights  of  assignee,  206. 
by  operation  of  law,  208. 


INDEX.  607 

[The  figures  refer  to  pages.] 


ESCAMBIUM. 

must  be  used  in  common-law  exchange,  407. 

BSCHEAT, 

an  incident  of  tenure,  30. 
acquisition  of  title  by,  399,  485. 

ESCROW. 

delivery  of  deed  in,  435. 

ESTATES, 
defined.  33. 
classification  of,  33. 
of  freehold,  34. 
quantity  of,  34. 

of  inheritance,  35. 
dower  in,  86. 
dower  in  rents,  87. 
in  fee  simple,  35. 
estates  tail,  42. 
life  estates,  55. 

restraints  on  alienation  of,  395. 
per  autre  vie,  67. 

general  occupancy,  68 
incidents  of,  68. 
conventional  life  estates,  56. 
legal  life  estate,  estates  by  marriage,  6a 
during  coverture,  70. 
curtesy,  73. 
dower,  83. 
less  than  freehold,  128. 
as  to  quality,  169. 
on  condition,  169. 

mortgages,  169. 
on  limitation,  177. 
as  to  time  of  enjoyment,  279. 
present  and  future,  279. 
in  expectancy,  dower  in,'  91. 
as  to  number  of  owners,  332. 

joint  estates,   332. 
unknown  forms  cannot  be  created,  40. 
particular,  284. 
powers  distinguished  from,  308. 

ESTATES  FOR  YEARS, 
defined,  128. 


608  INDEX. 

[The  figures  refer  to  pages.] 

ESTATES  FOR  TEARS— Continued, 
history  of,  129. 
creation,  130. 

contract  or  devise,  130. 

lease  and  agreement  for  lease,  130. 

who  may  create,  131. 

form,  132. 

commencement,  133. 

duration,   133. 

interesse  termini,  133. 
rights  and  liabilities  of  landlord  and  tenant,  see  "Landlord  and  Tenant' 
transfer,   147. 

by  lessor,  147. 

by  lessee,   148. 

by  operation  of  law,  149. 
termination,  150. 

lapse  of  time,  150. 

forfeiture,   150. 

merger,  152. 

surrender,   152. 

taking  into  power  of  eminent  domain,  153. 

destruction  of  premises.  153. 
letting  land  on  shares,  154. 
homestead    in,   116. 
restraints  on  alienation  of.  390. 

ESTATES  IN  COPARCENARY, 
partition   of,  344. 

ESTATES  IN  ENTIRETY,  337. 
in  the  United   States,  338. 
partition    of,    344. 

ESTATES  IN   EXPECTANCY, 
see  "Future  Estates." 

ESTATES  IN  PARTNERSHIP.  339. 

ESTATES   ON    CONDITION. 

distinguished  from  estates  on  limitation,  17T, 
conditions  precedent  and  subsequent,  170. 
void  conditions,  172. 

effect  of,  173. 
termination,  174. 
who  can  enforce  a  forfeiture,  176. 


INDEX.  60* 

[The  fisrures  refer  to  pages.] 


ESTATES  ON  LIMITATION. 
defined,  177. 

distinguished  from  estates  on  condition,  177. 
base  or  determinable  fees,   178. 

ESTATES   TAIL, 
defined,  42. 
donor   and   donee,    42. 
classes  of,  43. 

general  tail,  43. 
special  tail,  43. 
male,  44. 
female,  44. 
origin,   44. 
creation  of,  47. 

words  of  limitation,  47. 
words  of  procreation,  47. 
In  chattel  interests,  49. 
incidents  of,  49. 

tenant  need  not  pay  interest  on  Incumbrances,  49. 
curtesy,  50. 
dower,  50. 
merger,  50. 
duration  of,  50. 

barred  by  common   recovery,  50. 
by  fine,  51. 
by  deed,   52. 
in  United  States,  52. 

abolished  in  some  states,  53. 
tenant  in  tail  after  possibility  of  issue  extinct,  52. 
In  estates  per  autre  vie,  54. 

quasi  entail,   53. 
restraints  on  alienation  of,  395. 
ESTATE  TAKEN  BY  PURCHASER, 
at  tax  sale,  493. 

ESTOPPEL. 

dower  defeated  by,  110. 
to  deny  lessor's  title,  143. 

tenant  at  sufferance,  164. 
title  by,  defined,  450. 
in  pais,  451. 

division  lines.  453. 
by  deed,  453. 

KEAL  PROP.— 39 


610  INDEX. 

[The  figures  refer  to  page«.l 

ESTOPPELr-Contlnued, 

by  covenants  of  warranty,  454. 

by   quitclaim   deed,  454. 

by  recitals,  454. 

in  conveyance  by  joint  tenants,  455. 

of  married  women,  455. 

ESTOVERS. 

house  bote,  61. 

fire  bote.  61. 

hay  bote.  61. 

plough  bote,  61. 

Incidents  of  life  estates,  61. 

of  dower,  101. 

of  tenancies  from  year  to  year,  160. 
mortgagor  entitled  to,  195. 
common  of,  373. 

EVICTION. 

extinguishment  of  rent  by,  378. 

EXCEPTIONS, 
In  deed,  417. 

EXCESSIVE  EXECUTION, 
of  powers,  318. 

EXCHANGE, 

a  common-law  conveyance,  407. 

EXCLUSIVE    FRANCHISES, 

may  be  protected  as  contracts,  379. 

EXCLUSIVE   POSSESSION. 

necessary  in  acquisition  of  title  by  adverse  possession,  465. 

EXCLUSIVE  POWERS,  312. 

EXECUTED  TRUSTS,  258. 

EXECUTION, 

interest  of  tenant  at  will  cannot  be  sold  on,  156. 
mortgagee's  interest  before  foreclosure  not  subject  to,  212. 
purchasers  at,  when  protected  under  recording  act,  225. 
of  powers.  314. 

form  of,  315. 

time  of,  317. 

compelling,  318. 

defective,  318. 

excessive,  318. 


INDBX.  611 

[Tbe  figures  refer  to  yagea.] 


EXECUTORS. 

leases  by,  131. 
EXECUTORY  DEVISES, 

defined,  300. 

destruction  of.  302. 

alienation,  305. 

descent  of,  306. 
EXECUTORY  TRUSTS.  258. 

EXEMPTIONS. 

see  "Homestead." 
EXPRESS  COVENANTS, 

rights  of  landlord  and  tenant  under,  134. 

in  deeds,  440. 
EXPRESS  TRUSTS, 

see  "Trusts." 

F 
FAILURE  OF  ISSUE. 

rule  against  perpetuities,  326. 
FAILURE   OF  OBJECT. 

of  resulting  trust,  267. 
FEDERAL  HOMESTEAD  ACT,  126. 

FEE, 

defined,  35. 

under  feudal  system,  27. 
FEE  CONDITIONAL. 

at  common  law,  45. 

became  estates  tail.  45. 

FEE  FARM   RENTS,  375. 
FEE  SIMPLE, 
defined.  35. 
creation,  36. 
by  deed.  36. 

words  of  limitation,  .^6- 
in  quitclaim  deed,  37. 
by  devise,  38. 
by  joint  tenant,  37. 
right  of  user,  39. 
alienation,  39. 
voluntary,  40. 
involuntary,   40. 
restraints  on,  395. 


€12  INDEX. 

[The  figures  refer  to  pages.] 

FEE   TAIL. 

see  "Estates  Tall." 

FENCES. 

pai-tition,  3G8. 

when  possession  up  to  Is  adverse,  403. 

FEOFFMENT. 

defined,  405. 

tortious,  operation  of,  406. 

FERRIES. 

rights  to  operate  are  franchises,  379. 
personal  property  In  Iowa,  379. 

FEUDAL  SYSTEM.  26. 

FEUD. 

defined,  27. 

FICTITIOUS  PERSON, 
deed  to,  void,  416. 

FIEF. 

defined,  27. 

FILLING  BLANKS, 
in  deeds.  428. 

FINE, 

barring  estate  tail  by,  51. 

conveyance  of  married  woman  by,  386. 

FIRE  BOTE, 
defined,  61. 

FIRST  PURCHASER, 

inheritance  of  ancestral  lands  by  Issue  of,  484. 

FISH, 

rights  of  common,  874. 

FIXTURES. 

defined  and  classified,  10. 

real  and  chattel.  10. 

what  are  removable,  11. 

intention  the  test  of  character,   12. 

character  determined  by  express  contract,  12. 

by  statutory  regulation,  12. 

by  annexation,  13. 

constructive  annexation,  14. 

by  adaptation   for  use  of  realty,  15. 


INDEX.  613 

[The  figures  refer  to  pages.] 

FIXTURES— Continued, 
by  nature,  16. 

trade  fixtures,  16. 
agricultural  fixtures,  17. 
domestic  fixtures,  18. 
by  party  making  annexation,  19. 
time  of  removal,  22. 
covered  by  mortgage  of  land,  185. 
removal  of,  breach  of  covenant  of  warranty,  448. 
FORECLOSURE, 

see  "Mortgage." 
FORFEITURE. 

an  incident  of  tenure,  80. 

re-entry  for,  150. 

termination  of  estates  for  years  by,  150. 

of  estate  on  condition,  vpalver,  175. 

who  can  enforce,  in  estates  on  condition,  176. 

of  particular  estate  may  destroy  contingent  remaindor,  293. 

of  franchises.  379. 

for  alienation,  clauses  of,  394. 

of  title  for  nonpayment  of  taxes,  490. 

FOSSILS. 

are  real  property,  7. 

FRANCHISES, 

defined.  378. 

are  incorporeal  hereditaments,  349. 

alienation,  379. 

forfeiture,  379. 

taken  under  right  of  eminent  domam,  379. 

ferries.  379. 

personal  property  in  Iowa,  379. 

for  bridges  on  turnpike  roads,  380 
FRANKALMOIGNE. 

defined,  28. 

FRAUD, 

see  "Statute  of  Frauds." 
an  essential  element  of  constructiv*'  trusts.  260. 
FRAUDULENT   CONVEYANCE, 
restraints  on  alienation,  392. 
when  conveyance  of  homestead  is  not,  393. 
test  of.  393. 
marriage  a  valuable  consideration,  393. 


G14  INDEX 

[The  figures  refer  to  pages.] 

FREE  ALMS, 
tenure  by,  28. 

FREE  AND  COMMON  SOCAGE, 
tenure  in,  28. 

FREEHOLDS, 
defined,  34, 

when  long  terms  of  years  are,  35. 
in  future.  284. 

estates  for  years  may  be  created  In  futuro,  133. 

FRUCTUS  INDUSTRIALES, 
defined,   9. 

FURTHER  ASSURANCE, 
covenant  for,  449. 

FUTURE  ACCESSIONS, 

covered  by  mortgage,  185. 

FUTURE  ADVANCES, 
mortgages  for,  224. 

FUTURE   ESTATES, 
defined,  279. 
curtesy  in,  79. 
dower  in,  91. 
homestead  In,  117. 
may  be  mortgaged,  184. 
at  common  law,  279. 
reversions,  280. 
possibility  of  reverter,  281. 
remainders,  281. 

how   created,   282. 

when  they  must  take  effect,  283. 

freehold  in  futuro,  284. 

the  particular  estate,  284. 

distinguished  from  shifting  uses  and  devises,  285^ 

cross,  286. 

successive.  286. 

alternate,  287. 

vested,  288. 

remainders  to  a  class,  288. 
destruction   of,   289. 
contingent,  289. 
.    -  distinguished  from  rested,  290. 

estates  which  will  support,  291. 


INDEX.  615 

[The  Q.^ures  refer  to  pages.] 

FUTURE  ESTATES— Continued, 

New  York  Code  definition  of,  291. 

test  of,  291. 

contingency  on  which  remainder  may  depend,  292. 

destruction  of,  293. 

by  destruction  of  particular  estate,  293. 
by  expiration  of  particular  estate,  293. 
by  forfeiture  of  particular  estate,  293. 
by  merger  of  particular  estate,  293. 
trustees  to  preserve,  293. 

liability  to  be  destroyed  removed  by  statute,  293. 
rule  In  Shelley's  Case,  295. 
under  statute  of  uses,  298. 
future  uses,  298. 
springing  uses.  299. 
shifting  uses.  300. 
under  statute  of  wills,  300. 

executory  devises,  devises  presumed  to  be  In  praesentl,  301. 
executory  devises,  destruction  of,  301. 
incidents  of,  302. 
tenure,  303. 
waste,  304. 
alienation,  305. 
descent  of.  306. 

FUTURE  USES, 
defined,  298. 

statute  of  uses  does  not  operate  on,  254. 
descent  of,  306. 

FUTURO. 

freehold  In,  284. 

o 

GENERAL  OCCUPANCY, 

of  estates  per  autre  vie,  68. 

GENERAL  POWERS,  312. 

GERMAN  GRUNDBUCH,  413. 

GIFT. 

creation  of  estate  tail  is,  42. 

GIFTS  TO  CHARITIES. 

application  of  rule  against  perpetuities,  829. 
GLOUCESTER, 

statute  of,  66. 


616  INDBX. 

[The  figrures  refer  to  pages.] 

GRAND  SERJEANTY, 
defined,  28. 

GRANT. 

creation  of  easements  by.  350. 
from  state  to  private  persons,  401. 
a  common-law  conveyance,  407. 

GRANT  AND  DEMISE. 

implied  covenant  by,  440. 

GRANTEE. 

In  deed,  designation  of,  416. 

GRANTING  CI.AUSE. 

requisites  of,  In  deeds.  417. 

GRANTORS, 

of  joint  estates  not  competent  witnesses  for  each  other,  439. 

GROSS, 

powers  in,  310. 

GRUNDBUCH. 

the  German,  413. 

GUARDIANS, 
leases  by,  131. 
conveyances  by,  487. 


HABENDUM, 
in  deeds,  418. 

HALF  BLOOD, 
descent  to,  485. 

HAY  BOTE, 
defined.  61. 

HEAD  OF  A  FAMILY, 
who  is.  113. 

HEIRS. 

as  word  of  limitation  of  fee  simple,  87. 

who  are.  479. 

collateral,  defined,  484. 

and  ancestral  lands,  483. 

what  descends  to,  497. 
HEREDITAMENTS. 

defined,  3. 

corporeal  and  Incorporeal,  348. 


INDEX.  617 

[The  figures  refer  to  pages.] 

HIGHWAYS, 
defined,  361. 
dedication  of,  362. 
as  boundaries,  422. 
HOMESTEAD, 
defined.  112. 
origin,  112. 

head  of  a  family,  who  Is,  118. 
who  entitled  to,  113. 
duration  of,  115. 
in  what  estates,  116. 
amount  of  exemption,  117. 
urban  and  rural,  117. 
how  acquired,  118. 

occupancy,  118. 

recorded  notice,  119. 

selection,  120. 
how  lost.  120. 

abandonment,    121. 

alienation,  122. 

waiver,  122. 
privileged  debts,  124. 

debts  contracted  before  incumbrances,  124. 

debts  contracted  before  passage  of  homestead  law,  124. 

debts  contracted    before  acquisition,  124. 

liabilities  for  tort,  124. 

liens  for  creation,  improvements,  and  preservation,  124. 

public  debts,  124. 
federal.  126. 

when  conveyance  of  not  fraudulent,  393. 
HORIZONTAL  DIVISION. 
of  realty,  4. 

easements  created  by,  365. 
HOSTILE  POSSESSION. 

necessary  in  acquiring  title  by  adverse  possession,  463. 
HOTCHPOT,  482. 
HOUSE  BOTE, 
defined,  61. 

I 

ICE. 

by  whom  owned,  6. 
IDIOTS. 

capacity  to  hold  and  convey  real  property,  383. 


618  INDEX. 

[Tlie  figures  refer  to  r^gen.} 

IMMOVABLES, 
and  movables,  3. 

IMPLICATION, 

ways  of  necessity  by,  359. 

IMPLIED  COVENANTS, 

rights  of  landlord  and  tenant  under,  138. 
by  lessor.  138. 
by  lessee,  139. 
to  pay  rent,  140. 
In  deeds.  440. 

IMPLIED  NOTICE.  215. 

IMPLIED  TRUSTS, 
see  "Trusts." 

IMPROVEMENTS, 
by  life  tenant,  61. 
by  dowress,  102. 
covered  by  mortgage,  185. 
by  mortgagor,  195. 
in  partition  of  Joint  estates,  846. 

INCLOSURE. 

as  evidence  of  adverse  possession,  459. 

INCORPOREAL  HEREDITAMENTS, 
defined,  348. 
Ivinds  of,  348. 
easements,  349. 

distinguished  from  licenses,  350. 
dominant  estate,  350. 
servient  estate,  350. 
essential  qualities,  350. 
creation,  350. 

by  grant,  350. 

by  covenants,  351. 

by  parol,  351. 

by  prescription,  352. 
classification,  354. 

appendant  or  appurtenant  and  in  gross,  8&L 
continuous  and   discontinuous,   354. 
natural  and  conventional,  354. 
negative  and  affirmative.  354. 
Incidents,  355. 

use  of  easement,  356. 


INDEX.  6i9 

[The  figures  refer  to  pages.] 


INCORPOREAL  HEREDITAMENTS— Continued, 
repairs,  356. 
obstruction,  356. 
destruction,  357. 

by  abandonment,  357. 
by  license,  357. 
by  merger,  357. 
by  misuser.  357. 
by  release,  357. 
specific  easements,  359. 
rights  of  way,  359. 
repair  of,  361. 
highways,  361. 
light  and  air,  363. 
lateral  and  subjacent  support,  365. 

horizontal   ownership   of   buildings,   368. 
party   walls,   366. 
partition  fences,  368. 
in  water.  368. 

subterranean    waters,    371. 
surface  water,  371. 
eaves'  drip,  372. 
artificial  water  courses,  372. 
profits  a  prendre,  373. 
rents,  375. 

effect  by  quia  emptores,  376. 
charge  and  seek.  375. 
service,  375. 

application  of  merger,  378L 
franchises,  378. 
alienation,  379. 
forfeiture.  379. 

taking  under  eminent  domain,  379. 
for  ferries,   379. 
for  bridges  and  turnpike  roads,  380. 

INCUMBRANCES, 

tenant  in  tail  need  not  pay  off,  49. 
Interest  on,  payment  by  life  tenant,  60. 

INDEFEASIBLE  SEISIN, 
covenant  of,  443. 

INDEMNITY  FUND. 

under  registered  title,  414. 


620  INDEX. 

[The  figures  refer  to  pages.] 

INDENTURES, 

and  deeds  poll,  432. 

INDEPENDENT  COVENANTS, 
In  deeds,  441. 

INFANTS. 

leases  by,  131. 

power  to  hold  and  convey  realty,  382. 

disseisin  of,  468, 

INFEUDATION. 
defined,  27. 

INFORMAL  MORTGAGE. 

may  be  effective  in  equity,  191. 
INHERITANCE, 

estates  of,  defined,  35,  76. 

by  aliens,  388. 

by  naturalized  citizens,  388. 

INSANE  PERSONS, 

capacity  to  hold  and  convey  realty,  383. 
disseisin  of,  468. 

INSOLVENT  LAWS.  394. 
INSURANCE. 

on  mortgaged  premises,  197. 

INTENTION  TO  DISSEISE, 

necessary  for  title  by  adverse  possession,  460. 

INTERESSE  TERMINI,  133. 
INTEREST, 

unity  of,  In  joint  tenancies,  333. 
INTOXICATED  PERSONS, 

leases  by,  131. 
IRRIGATION. 

rights  to  water,  370. 
ISSUE. 

failure  of,  326. 

J 

JOINT  DISSEISOR. 

abandonment  of  possession  by,  408. 
JOINT  ESTATES, 
curtesy  in,  79. 
dower  in,  92. 

partnership  lands,  93. 


INDEX.  621 

[The  figures  refer  to  pages.] 

JOINT  ESTATES— Continued, 

letting  land  on  shares  may  create,  154. 

defined,  332. 

joint  tenancies,  333. 

tenancies  in  common,  335. 

estates  in  coparcenary,  336. 

estates  in  entirety,  337. 

in  the  United  States,  338. 
community  system,  338. 
estates  in  partnership,  339. 
incidents  of,  340. 

possession  and  disseisin,  340. 

accounting  between  co-tenants,  341. 

repairs  and  waste,  342. 

actions  affecting,  343. 

transfer  of,  343. 
partition,  344. 

method  of  division,  345. 

question  of  title  cannot  be  settled,  345. 

failure  of  title.  34G. 

compulsory,  warranty  of  title,  346, 

Improvements,  346. 
grantors  of,  not  competent  witnesses  for  each  other,  to  deed,  439. 
estoppel  In  conveyance  of,  455. 

JOINT  MORTGAGES,  336. 

JOINT  OWNER. 

what  is  disseisin  of,  464. 

JOINT  TENANCIES,  333. 
unities,  333. 

conveyances  by  one  tenant,  334. 
partition  of,  344. 

JOINT  TENANT, 
lease  by,  132. 

JOINTURE. 

legal  and  equitable,  107. 

JUDGMENT, 
~  reversal  of,  effect  on  title,  490. 

JUDGMENT  CREDITORS. 

when  protected  under  recording  acta,  225. 

JUDGMENT    LIEN, 

as  breach  of  covenant  against  incumbrances,  445. 


622  INDEX. 

[The  fl^urea  refer  to  pas»^.] 

JUDICIAL  PROCESS, 
title  by,  486. 
conveyances  under  licenses,  486. 

by  personal  representatives,  487. 

by  guardians,  487. 

of  settled  estates,  488. 
conveyances  under  decrees,  488. 

specific  performance,  488. 

partition,  488. 

sales  on  execution,  489. 

effect  of  reversal  of  judgment,  490. 
tax  titles.  490. 

forfeiture,  490. 

ministerial  sales,  491. 

Judicial  sale,  492, 

redemption,  492 

tax  deed,  492. 

estate  taken  by  purchaser,  493. 
eminent  domain,  494. 

compensation  for  land  taken  under  right  of,  493. 

K 

KNIGHT'S  SERVICE, 
tenure  by,  27. 

L 

LACHES, 

defeating  dower,  111. 
LAKES, 

as  boundaries,  423. 
LAND, 

is  real  property,  3. 
LANDLORD. 

defined,  128. 
LANDLORD  AND  TENANT, 
rights  and  liabilities,  134. 

under  express  covenants,   134. 

,  covenants  running  with  the  land,  136. 
personal  covenants,  136. 
under  implied  covenants,  138. 
covenants  by  the  lessor,  138. 
covenants  by  the  lessee,  139. 
rent,  140. 


INDEX.  623 

[The  figures  refer  to  pages.] 


LANDLORD  AND  TENANT— Continued, 
independent  of  covenant,  141. 

landlord's  right  to  protect  reversion,  141. 
tenant's  right  to  exclusive  possession.  142. 
^  tenant  estopped  to  deny  landlord's  title,  143. 

tenant's  right  to  estovers,  143. 
tenant's  right  to  emblements,  143. 
tenant's  liability  for  waste,  143. 
distress  for  rent,  145. 
disseisin  of  tenant  is  disseisin  of  landlord,  468. 
LANDS. 

tenements  and  hereditaments,  3. 

LAND  SYSTEM, 
public.  402. 

LAPSED  DEVISES,  479. 

I^PSE  OF  TIME. 

termination  of  estates  for  years  by.  150. 

LATENT  AMBIGUITIES. 

in  description  of  property,  420. 
LATERAL  AND  SUBJACENT  SUPPORT,  365. 

LAWFUL  SEISIN, 
covenant  of,  443. 

LEASE, 

defined,  128. 

a  common-law  conveyance,  407. 

when  writing  necessity  for,  407. 

under  registered  titles,  413. 

Is  a  deed,  415. 

not  breach  of  covenant  of  seisin,  444. 

as  breach  of  covenant  against  incumbrances,  446. 

LEASEHOLD. 

see   "Estates  for  Years." 

LEGAL  CAPACITY. 

to  hold  and  convey  realty,  381. 

infants,  382. 

persons  of  unsound  mind,  383. 

drunkards,  385. 

married  women,  385. 

conveyance  from  husband,  388^ 

separate  examination,  386. 

wills  of,  387. 


624  INDBX. 

[The  figures  refer  to  pages.] 

LEGAL  CAPACITY— Continued, 
aliens,  387. 

inheritance  by,  388. 

office  found,  388. 

Inheritance  by  naturalized  citizens,  388. 
corporations,  389. 

LEGAL  ESTATES,  251. 

LEGAL  LIFE  ESTATES,  69. 

homestead  has  incidents  of,  115. 

LESSEE. 

defined.  128. 

Implied  covenants  by,  139. 

transfer  of  estate  by,  148, 

LESSOR, 

defined,  128. 

implied  covenants  by,  138. 

transfer  of  estate  by,  147. 

LETTING  LAND  ON  SHARES,  154. 

LETTING  OF  LODGINGS, 

the  relation  established,  1(52. 

r.EX  LOCI, 

governs  title  by  devise,  474. 

LIABILITY  FOR  TORT. 

homestead  not  exempt  from,  124- 

LICENSES. 

defined.   165. 

creation,  165. 

incidents  of,  166. 

not  assignable,  166. 

revocation,  167. 

distinguished  from  easements,  350. 

destruction  of  easements  by,  357. 

conveyances  under,  486. 

LIEN, 

vendor's,  an  equitable  mortgage,  192. 

vendee's,  an  equitable  mortgage,  IM. 
LIEN  THEORY, 

of  mortgage,  183. 


INDEX.  626 

[The  figures  refer  to  pages.] 

LIFE  ESTATES, 
defined,  55. 
creation  of,  55. 
kinds  of,  55. 
per  autre  vie.  55. 
conventional,  56. 

creation,  words  of  limitation,  57. 
legal,  69. 
incidents,  58. 

alienation,  59. 

Interests  on  Incumbrances,  60. 

apportionment  of  rent,  60. 

emblements,  61. 

estovers.  61. 

Improvements,  61. 

repairs,  61, 

waste,  62. 

merger.  66. 
estate  by  curtesy  has  incidents  of,  79. 
homestead  in,  116. 
restraints  on  alienation  of,  395. 

IJGHT  AND  AIR, 
easement  of,  363. 

LIMITATION. 

estates  on,  see  "Estates  on  Limitation." 

of  trustee's  estate,  261. 

In  creation  of  fee  simple.  36. 

technical  words  of,  not  required  in  creation  of  powers,  309. 

title  by,  457. 

words  of  in  wills,  473. 

LINEAL  RELATIONS, 
defined.  483. 

LIS  PENDENS, 

is  constructive  notice,  218. 

LIVERY  OP  SEISIN,  406. 

LOCATION. 

of  rights  of  way,  360. 

LODGINGS. 

see  "Letting  of  Lodgings.** 

REAL  PROP. —40 


626  INDEX. 

[The  figures  refer  to  pages.] 

LOGGING, 

rigbts  of  boom  companies.  370. 

LOST  CORNERS, 
how  located,  424. 

LUNATICS. 

leases  by,  131. 

M 

MALES. 

preference  of,  In  descent,  482. 
In  collateral  lines.  485. 

MANURE, 

when  realty,  17. 

MAPS. 

in  descriptions  in  deeds,  42L 

MARRIAGE. 

an  incident  of  feudal  tenure,  29. 

a  requisite  of  curtesy,  74. 

a  requisite  of  dower,  84. 

Is  a  valuable  consideration.  393. 

MARRIED  WOMEN, 
leases  by,  131. 

capacity  to  hold  and  convey  real  property,  885. 
conveyance  from  husband,  386. 
separate  examination,  386. 
wills  of.  387. 
acknowledgment  by,  437. 
estoppel  of,  by  conveyance,  455. 
disseisin  of.  468. 

MARRIED  WOMEN'S  ACTS,  73. 

MARSHALING, 

of  mortgage  securities,  204. 

MERGER. 

estate  tail  not  subject  to,  50. 

an  incident  of  life  estates,  66. 

termination  of  estates  for  years  by,  152. 

discharge  of  mortgage  by,  231. 

of  particular  estate  may  destroy  contingent  remainder,  293. 

destruction  of  easements  by,  357. 

destruction  of  profits  a  prendre  by,  375. 

application  of,  to  rents,  378. 


INDEX.  627 

[The  figures  refer  to  pages.] 

METALS. 

when  real  property,  7. 

MILITARY  TENURES, 
abolished,  29. 

MILLS. 

water  rights,  370. 
MINERALS, 

when  real  property,  7. 
MINES. 

when  opening  is  waste,  64. 
MINISTERIAL  SALES. 

tax  titles  by,  491. 
MISUSER, 

of  easement,  destruction  by,  857. 
MONOMANIA, 

as  affecting  capacity  to  convey  realty,  384, 
MONTH   TO   MONTH, 

tenancies  for,  see  "Tenancies  from  Year  to  Year." 
MONUMENTS. 

description  by,  in  deeds,  422. 
MORTGAGEE, 

rights  and  liabilities,  see  "Mortgages." 

purchase  by,  at  foreclosure,  249. 
MORTGAGES, 

registration  of,  see  "Registration." 

dower  in,  89. 

is  an  estate  on  condition,  169. 

defined,  180. 

the  usual  condition  of  defeasance,  181. 

parties  to,  182. 

theories  of,  182. 

nature,  183. 

what  may  be  mortgaged,  184. 

form  of,  186. 

deed  absolute,  187. 

parol  defeasance,  187. 

sale  with  agreement  to  reconvey,  189. 

deed  of  trust,  190. 

equitable  mortgage,  190. 

agreement  to  mortgage,  191. 

Informal  mortgage  may  be  efiCective  In  equity,  191. 


€28  INDEX. 

[The  Q&ures  refer  to  pages.] 

MORTGAGES— Continued, 

vendor's  lien,  192. 

vendee's  Hen,  194. 

deposit  of  title  deeds.  192. 
rights  and  liabilities  of  mortgagor  and  mortgagee,  194. 
nature  of  mortgagor's  estate,  195. 
possession  of  mortgaged  premises,   196. 
insurance  on  mortgaged  premises,  197. 
accounting  by  mortgagee,  199. 

debits,  200. 

credits,  201. 

annual  rests,  202. 
marshaling,  204. 
subrogation,  203. 

relief  of  the  real  by  the  personal  estate,  204. 
fissignment  of  equity  of  redemption,  205. 

no  mortgage  without  an  equity  of  redemption.  205. 
assignment  of,  209. 

by  operation  of  law,  211. 
priority,  212. 

actual  notice,  213. 
Implied  notice,  215. 
constructive  notice,  215. 

possession,  216. 

recitals  In  title  deeds,  210. 

lis  pendens.  218. 

registration,  218. 
discharge  of,  227. 
performance,  227. 
payment,  227. 
tender,  230. 
merger,  231. 
redemption,  233. 

who  may  redeem,  234 

amount  payable,  235. 

contribution  to  redeem,  236. 

redemption,  when  barred,  237. 
form  of,  238. 
foreclosure,  239. 

when  right  accrues,  239. 
when  right  is  barred,  240. 
personal  remedies,  241. 
decree  for  deficiency,  241. 


INDEX.  629 

[The  figures  refer  to  pages.] 


MORTGA  G  E  S— Continued, 
receivers,  24L 
kinds  of,  242. 

by  entry  and  possession,  248. 
by  writ  of  entry,  244. 
In  equity,  244. 

parties  plaintiff,  244. 
parties  defendant,  245. 
strict  foreclosure.  248. 
decree  of  sale,  248. 
power  of  sale,  248. 
purchase  by  mortgagee,  249. 
when  subject  to  rule  against  perpetuities,  828. 
joint.   336. 

under  registered  titles,  413. 
are  deeds,  415. 

as  breach  of  covenant  against  Incumbrances,  444. 
not  breach  of  covenant  of  seisin,  444. 
not  revocation  of  devise,  476. 

MORTGAGOR, 

rights  and  liabilities,  see  "Mortgages." 

lease  by,  132. 

disseisin  of  mortgagee  by,  195. 

MORTMAIN, 

statutes  of,  389. 

MOVABLES  AND  IMMOVABLES,  8. 

N 

NAKED  POWERS.  311. 

public  officer  selling  for  taxes  has,  491. 

NAME. 

assumed,  grantee  may  be  designated  by.  4l«i, 

NATURAL  EASEMENTS,  354. 

NATURALIZED  CITIZENS. 

inheritance  by,  388. 
NAVIGABLE  RIVERS, 

ownership  of  bed,  5. 

as  boundaries,  422. 
NECESSITY, 

ways  of.  359. 
NEGATIVE  EASEMENTS,  354. 


630  INDEX. 

[The  flgui-es  refer  to  pages.] 

NONEXCLUSIVE  POWERS,  812. 

NOTICE, 

acquisition  of  homestead  by,  119. 

to  terminate  tenancy  at  will,  157. 

to  terminate  tenancy  from  year  to  year,  161. 

to  terminate  tenancy  at  sufferance,  1G5. 

priority  of  conveyances  depends  upon,  212. 

actual,  213. 

Implied,  215. 

constructive,  218. 

possession,  210. 

recitals  in  title  deeds,  216. 

lis  pendens,  218. 

registration,  218. 

of  what  facts  registration  Is,  222. 
to  whom  registration  is,  222. 

NOTORIOUS  POSSESSION, 

necessary  In  acquiring  title  by  adverse  possession,  462, 

NUISANCE. 

owner  in  fee  simple  must  not  maintain,  39. 

NUMBER  OF  OWNERS, 
estates  as  to,  332. 

o 

OBSTRUCTION. 

of  easements,  356. 

OCCUPANCY. 

acquisition  of  homestead  by,  118. 
title  by,  457. 

OCCUPANTS, 

general  and  special  of  estates  per  autre  vie,  68. 

OFFICE  FOUND, 

divesting  title  of  aliens,  388. 

OFFICER. 

De  facto,  acknowledgment  before,  488. 

OFFICES. 

are  Incorporeal  hereditaments,  349. 

OPTION  TO  PURCHASE, 
may  be  mortgaged,  185. 

OUSTER. 

necessary  in  acquisition  of  title  by  adverse  possession,  459. 


INDEX.  631 

[The  figures  refer  to  pages.] 

OWNERS. 

number  of  estates  as  to,  332. 

OWNERSHIP, 

no  absolute  ownership  of  land  under  feudal  system,  27. 

P 

PAIS, 

estoppel  In,  451. 

PAROL. 

easements  cannot  be  created  by,  351. 

PAROL  DEFEASANCE, 
mortgage  may  have,  187. 

PARTICULAR  ESTATE, 

preceding  a  remainder,  284. 

destruction  of,  may  destroy  contingent  remainder,  293. 
expiration  of,  may  destroy  contingent  remainder,  293. 
forfeiture  of,  may  destroy  contingent  remainder,  293. 
merger  of,  may  destroy  contingent  remainder,  293. 

PARTIES. 

to  a  mortgage,  182. 

in  creation  of  express  trusts,  263. 

names  of,  in  deeds,  416. 

PARTITION, 

of  joint  estates,  344. 

questions  of  title  cannot  be  settled  in,  345. 

compulsory,  warranty  of  title,  346. 

failure  of  title  in,  346. 

Improvements,  346. 

horizontal,  easements  created  by,  365. 

a  common-law  conveyance,  408. 

right  of  eldest  male  to  elect,  483. 

conveyance  of  title  by,  488. 

PARTITION  FENCES,  368. 

PARTNERSHIP, 

realty,  homestead  In,  118. 

dower  In,  93. 
estates  In,  339. 

partition,  344. 

PASSIVE  TRUSTS, 
incidents  of,  271. 


632  INDEX. 

[The  figures  refer  to  pages.] 

PASTURE. 

common  of,  378. 

PATENT  AND  CERTIFICATE,  402. 
PAYMENT, 

discharge  of  mortgage  by,  227. 

PENSIONS, 

Incorporeal  hereditaments,  349. 

PER  AUTRE  VIE, 
defined,  55. 

PER  CAPITA, 

taking,  in  title  by  descent,  483. 

PERFORMANCE, 

discharge  of  mortgage  by,  227. 
PER  MY  ET  PER  TOUT,  333. 
PERPETUITIES. 
•  rule  against,  322. 

not  one  of  construction,  324. 
limits  alienation  of  fee  simple,  40. 
distinguished  from  restraints  on  alienation,  322. 
to  what  estates  the  rule  applies,  323. 
gifts  to  charities,  329. 
effect  of  limitations  too  remote,  325. 
application  to  charitable  trusts,  276. 
application  to  powers,  328. 
in  United  States,  330. 
PERSONAL  CAPACITY. 

to  hold  and  convey  realty,  see  "Legal  Capacity.** 
and  restraints  on  alienation,  392. 
PERSONAL  COVENANTS, 
in  leases,  136. 
In  deeds,  441. 
PERSONAL  ESTATE. 

bound  to  relieve  mortgaged  realty,  204. 
PERSONAL  INTERESTS  IN  LAND,  24. 
PERSONAL  REMEDIES, 

In  foreclosure,  241. 
PERSONAL  REPRESENTATIVES, 

conveyances  of  land  by,  487. 
PERSONS  OP  UNSOUND  MIND, 

power  to  hold  and  convey  realty,  383. 


INDEX.  63? 

[The  figures  refer  to  pages.] 


PER  STIRPES. 

taking,  in  title  by  descent,  483. 

PETTY  SERJEANTY, 
defined,  28. 

PISCARY, 

common  of,  373. 

PLATS  AND  MAPS. 

in  descriptions  in  deeds,  421. 

PLOUGH  BOTE, 
defined.  61. 

POSSESSION, 

see  "Adverse  Possession." 
lessee's  exclusive  right  to,  142. 
of  mortgaged  premises,  196. 
is  constructive  notice,  216. 
by  trustee  not  adverse,  274. 
unity  of,  in  joint  tenancies,  333. 
unity  of,  in  tenancy  in  common,  335. 
constructive,  460. 
of  joint  estates,  340. 

POSSIBILITY. 

may  be  devised,  474. 

of  reverter,  281. 

on  a  possibility,  327. 

of  issue  extinct,  tenant  In  tail  after,  52. 

POSTHUMOUS  CHILDREN, 
descent  to,  480. 

POWER  OF  ATTORNEY, 
to  execute  a  deed,  431. 

POWER  OF  SALE, 
foreclosure  by,  248. 

POWERS. 

defined,  306. 

donor  defined,  307. 

donee  defined,  307. 

appointee  defined,  307. 

distinguished  from  estates,  308. 

common-law  powers,  308. 

creation,  309. 

revocation  and  appointment,  309. 


(J34  INDEX. 

[The  figures  refer  to  pages.] 

POWERS— Continued, 

classes  of,  as  to  donee,  310. 
appendant  and  in  gross,  310. 
collateral  or  naked  powers,  311, 
classes  of,  as  to  appointees,  311. 
general  powers,  312. 
special.  312. 

exclusive,  312. 
Donexclusive,  312. 
execution,  314. 

who  may  execute,  314. 
form  of,  315. 
time  of.  317. 
compelling,  318. 
defective.  318. 
excessive,  318. 
rights  of  creditors,  320. 

beneficial  powers.  320. 
destruction,  321. 

application  of  rule  against  perpetuities  to,  328. 
naked,  public  officer,  selling  for  taxes  has,  49L 

TRECATORY  WORDS. 

in  creation  of  express  trusts,  26L 

TRECEDENT. 

see  "Conditions  Precedent  and  Subsequent 

PRE-EMPTION. 

of  public  lands,  404. 

laws  repealed.  404. 
PREFERENCE  OF  MALES, 

In  title  by  descent,  482. 
in  collateral  lines,  485. 

PRESCRIPTION, 

creation  of  easements  by,  352. 
light  and  air.  363. 
PRESENT  ESTATES, 

and  future.  279. 
PRIMARY  AND  SECONDARY. 

conveyances,  405. 

PRIMOGENITURE,  4S3. 

PRIORITY. 

of  mortgages  and  other  conveyances,  212. 


INDEX.  635 

[The  figures  refer  to  pages.] 


PRIVATE  PERSONS, 

acQuisition  of  title  by,  see  "Title.'» 

PROCREATION, 

words  of,  In  creating  estates  tall,  47, 

PROFITS  A  PRENDRE,  373. 
commons,  373. 
creation,  374. 
destruction,  375. 
alienation,  375. 
merger.  375. 

PROPERTY. 

real  and  personal,  L. 

PROTECTION, 

of  reversion  by  landlord,  141. 

PUBLIC  DEBTS. 

homestead  not  exempt  from,  124. 

PUBLIC  DOMAIN, 
sale  of,  402. 

PUBLIC  LANDS, 
entry  on,  402. 
pre-emption,  404. 

PUBLIC  LAND  SYSTEM,  402. 

PUBLIC  TRUSTS, 

see  "Charitable  Trusts." 

PURCHASE, 

title  by,  399. 
PURCEIASE  MONEY  MORTGAGE, 

priority  of,  225. 


Q 


QUALITY  OF  ESTATES,  169. 

QUANTITY, 

description  by,  425. 

QUANTITY  OF  ESTATES,  84. 

QUARANTINE,  94. 

QUARRIES, 

when  opening  Is  waste,  64, 

QUASI  ENTAIL, 
defined,  53. 


636  INDEX. 

[The  figures  refer  to  pages.] 

QUIA  EMPTORES. 
statute  of.  30. 
application  to  rent  service  In  fee,  876. 

QUIET  ENJOYMENT, 
covenant  of,  448. 

QUITCLAIM  DEEDS.  412, 

technical  words  of  limitation  not  necessary  in,  87. 
covenant  of  special  warranty  in,  448. 
estoppel  by,  454. 
whether  color  of  title,  461. 

B 

RAILROAD  OARS, 

whether  real  fixtures,  14,  16. 

READING. 

of  deeds,  when  requisite,  429. 

REAL  AND  PERSONAL  PROPERTY,  L. 
importance  of  distinction,  2. 

REAL  COVENANTS, 
in  deeds,  441. 

UEAL  FIXTURES, 
defined.  10. 

REAL  PROPERTY. 

equitable  conversion,  23. 
corporate  shares  not,  24. 
long  terms  of  years  are,  in  some  states,  2A. 

RECEIVERS. 

In  foreclosure.  241. 

RECITALS  IN  TITLE  DEEDS, 
constructive  notice,  216. 
estoppel  by,  454. 

RECOVERY. 

conveyance  by  married  woman  by,  386. 

REDDENDUM, 

same  as  reservation,  418. 

REDEMPTION. 

see  "Equity  of  Redemption." 
discharge  of  mortgage  by,  233. 


INDEX.  637 

[The  figures  refer  to  pages.] 


REDEMPTION— Continued, 

of  mortgage,  who  may  redeem,  234. 

amount  payable,  235. 

contribution,  23G. 

when  barred,  237, 
from  tax  sale,  492. 

RE-ENTRY, 

for  forfeiture,  150. 

REGISTERED  TITLES.  412. 
certificates  of  title,  418. 
transfers.  413. 

adverse  possession  abolished,  414. 
indemnity  fund,  414. 

REGISTRATION. 

constructive  notice  by,  218. 
what  instruments  recorded,  219. 
manner  of  recording,  220. 
of  what  facts  record  is  notice,  222. 
to  whom,  record  is  notice,  222. 
of  deeds.  439. 

RELATIONS, 

who  are  lineal,  483. 

RELATIONSHIP. 

by  consanguinity  and  aflSnlty,  483. 

RELEASE. 

of  dower  by  wife,  106. 
destruction  of  easements  by,  357. 
a  common-law  conveyance,  408. 

RELIEF. 

an  incident  of  feudal  tenure,  29. 

REMAINDER-MAN. 

adverse  possession  against,  464. 

REMAINDERS, 
defined,  281. 
how  created,  282. 
when  they  must  take  effect,  283. 
freehold  in  future,  284. 
the  particular  estate,  284. 

distinguished  from  shifting  uses  and  devises,  285. 
cross.  286. 
successive,  286. 


638  INDEX. 

[The  figures  refer  to  pages.] 

REMAINDERS— Continued, 
alternate,  287. 
vested.   288. 

destruction  of,  289. 

not  subject  to  rule  against  perpetuities,  320. 
contingent.  289, 

distinguished  from  vested,  290. 

estates  which  will  support,  29L. 

New  York  Code  definition,  291. 

test  of,  291. 

contingency  on  which  remainder  may  depend,  292. 

destruction  of.  293. 

by  destruction  of  particular  estate,  293. 
by  expiration  of  particular  estate,  293. 
by  forfeiture  of  particular  estate,  293. 
by  merger  of  particular  estate,  293. 
trustees  to  preserve,  293. 

liability  to  destruction  removed  by  statute,  293. 
whether  subject  to  rule  against  perpetuities.  826. 
tenure,  304. 
alienation,  305. 
descent  of,  306. 

REMEDIES, 

for  waste,  66.  . 

REMOTENESS, 
rule  against,  322. 

RENT. 

apportionment  of,  60,  377. 

in  estates  per  autre  vie,  68. 

to  dowress,  102. 
dower  In,  87. 

implied  covenant  to  pay,  140. 
distress  for,  145. 

tenant  at  sufferance  not  liable  for,  164. 
may  be  mortgaged,  185. 
charge  and  seek,  375. 
service,  375. 
distress.  376. 

effect  of  quia  emptores,  376. 
estates  in,  870. 
as  an  incorporeal  hereditament,  875. 

creation,  377. 


INDEX.  639 

[The  figures  refer  to  pages.] 


RENT— Continued, 

application  of  merger.  378. 
extinguished  by  eviction,  378. 

RENUNCIATION. 

of  title  by  devise,  475. 

REPAIRS, 

of  rights  of  way,  361. 

by  life  tenant,  61. 

when  failing  to  make  is  waste,  65. 

by  dowress,  101. 

duty  of  tenant  from  year  to  year  to  make,  160. 

of  easements,  356. 

by  joint  tenants,  342. 

REQUISITES  OF  DEEDS, 
see  "Deeds." 

RESERVATION, 

in  deeds,  418. 

same  as  reddendum,  418. 

RESTRAINTS  ON  ALIENATION,  390. 
history  of  right  of  alienation,  390. 
kinds  of,  390. 
imposed  by  law,  390. 
by  form  of  estate,  392. 
in  favor  of  creditors,  392. 
personal  capacity,  392. 
bankrupt  and  insolvent  laws,  394. 
Imposed  in  creation  of  estate,  394. 
separate  estates  of  married  women,  398. 
spendthrift  trusts.  396. 

RESULTING  TRUSTS, 
Bee  "Trusts." 

RESULTING  USES,  266. 

REVERSAL  OF  JUDGMENT, 

effect  of  on  title  by  sale  on  execution,  490. 

REVERSION. 

landlord's  right  to  protect,  141. 

defined,  280. 

tenure,  303. 

alienation  of.  305. 

descent  of,  306. 

not  subject  to  rule  against  perpetuities,  323- 


640  INDEX. 

[The  figures  refer  to  pages.] 

REVERTER. 

possibility  of.  281. 

REVOCATION, 
of  license,  167. 
powers  of,  309. 

RIGHTS  OF  COMMON, 
see  "Commons." 

RIGHT  OF  ENTRY, 

to  defeat  estate  on  condition,  176. 

whether  subject  to  rule  against  perpetuities,  327. 

by  disseisee,  458. 

RIGHT  OF  USER, 
of  fee  wimple,  39. 

RIGHT  OF  WAY,  359. 
by  necessity,  360. 
use  of,  360. 
location,  360. 
not  a  breach  of  covenant  of  seisin,  444. 

RIPARIAN  OWNER, 
easements  of,  369. 

RIVERS. 

as  boundaries,  422. 

ROYAL  MINES. 

none  in  United  States,  7. 

RULE  AGAINST  ACCUMULATIONS, 
see  "Accumulations." 

RULE  AGAINST  PERPETUITIES, 
see  "Perpetuities." 

RULE  IN  SHELLEY'S  CASE,  295. 

RURAL, 

homestead.  117. 

s 

SALE, 

power  of,  see  "Power  of  Sale." 

with  agreement  to  reconvey  may  be  a  mortgage,  189. 
judicial,  tax  title  by,  492. 
on  execution,  see  "Execution." 
title  by,  489. 

effect  of  reversal  of  judgment,  490. 


INDEX.  S^i 

[The  figures  refer  to  pages.] 


SCUTAGE. 
origin,  29. 

SEAL, 

defined,  429. 

when  necessary  for  deed,  429. 

SECONDARY  CONVEYANCES,  405. 

SEISIN, 

defined,  31. 

in  fact,  31,  406. 

In  law.  31,  406. 

transitory  as  giving  dower,  84. 

of  future  estates,  303. 

title  by  adverse  possession,  458. 

of  wife  requisite  of  curtesy,  75. 

SELECTION    OP  HOMESTEAD,  120. 

SEPARATE  ESTATE. 

of  wife.  72. 

restraints  on  alienation  of,  396. 

SEPARATE  EXAMINATION, 
of  married  woman,  386. 

SEPARATE  USE. 

statute  of  uses  does  not  operate  on  estates  for,  254. 

SERIES. 

limitations  to  and  rule  against  perpetuities,  328. 

SERJEANTY. 
defined,  28. 

SERVIENT  ESTATE.  350. 

SETTLED  ESTATES, 
conveyances  of,  488. 

SEVERANCE. 

may  make  real  fixtures  personalty,  14. 

SHELLEY'S  CASE, 
rule  in,  295. 

SHIFTING  DEVISE, 

distinguished  from  remainder,  285. 

SHIFTING  USES.  300. 

distinguished  from  remainder,  285. 
alienation,  305. 
KEAL  PROF. — 41 


642  INDEX. 

[The  figures  refer  to  pages.] 

SIGNING. 

requisite  of  deeds,  430. 

SOCAGE. 

tenure  In,  28. 

SPECIAL  OCCUPANTS. 

of  estates  per  autre  vie,  68. 

SPECIAL  POWERS,  312. 

exclusive  and  nonexclusive,  312. 

SPECIAL  WARRANTY, 
covenant  of,  446. 

SPECIFIC  EASEMENTS.  359. 

SPECIFIC  PERFORMANCE, 
conveyance  of  title  by,  488. 

SPENDTHRIFT  TRUSTS,  396. 

may  prevent  involuntary  alienation,  41, 

SPRINGING  USES.  299. 
alienation,  305. 

STATE. 

acquisition  of  title  by,  399. 

discovery,  conquest,  and  treaty,  399. 
confiscation  and  escheat,  399. 
transfer  from  individuals,  399. 
power  of  eminent  domain,  399. 
grant  from,  to  private  persons,  401. 

STATUTE. 

de  donis  conditionalibus,  44,  46. 

of  Gloucester,  06. 

of  frauds,  creation  of  estates  for  years,  132. 

in  creation  of  express  trusts,  262. 
of  limitations,  barring  dower.  111. 

title  by,  457. 
of  mortmain,  389. 
of  quia  emptores,  30. 
of  uses.  253. 

when  the  statute  does  not  operate,  254. 

in  the  United  States,  2-54. 

future  estates  under,  298. 

conveyance  under,  409. 
of  wills,  future  estates  under,  300. 


INDEX,  643 

[The  figures  refer  to  r&K^s.] 

STATUTORY  CONVEYANCE.  41L 

STRICT  FORECLOSURE.  248. 

SUBINFEUDATION. 

prohibited  by  quia  emptores,  30. 

SUBJACENT  SUPPORT,  365. 

SUBLEASE, 
defined.  148. 
liability  of  subtenant,  149. 

SUBROGATION, 

of  insurer  to  rights  of  mortgagee,  199,  203. 

SUBSEQUENT, 

see  "Condition  Precedent  and  Subsequent.** 

SUBTENANTS, 

under  feudal  system,  26. 
SUBTENURE. 

what  is.  27. 

SUBTERRANEAN  WATERS, 
easements  in,  371. 

SUCCESSIVE  REMAINDERS.  286. 

SUFFERANCE. 

see  "Tenancy  at  Sufferance.** 

SUPPORT. 

lateral  and  subjacent,  365. 

SURFACE   WATERS, 
easements  in,  371. 

SURRENDER, 

termination  of  estates  for  years  by,  152. 
a  common-law  conveyance,  408. 

SURVEY, 

the  congressional,  402. 

SURVIVORSHIP. 

doctrine  of,  in  joint  tenancies,  337. 
in  estates  in  entirety.  338. 

T 

TACKING. 

of  adverse  possession.  466. 
TALTARUM'S  CASE, 

recognized  common  recoveries,  51. 


644  INDEX. 

[The  figures  refer  to  pages.] 

TAX   DEED,   492. 

TAXES. 

fee  simple  liable  for,  41. 

payment  by  dowress,  102. 

as  breach  of  covenants  against  Incumbrances,  445. 

TAX  TITLES.  490. 
by  forfeiture,  490. 
ministerial  sales,  491. 
Judicial  sale,  492. 
redemption,  490,  492. 
tax  deed.  492. 
estate  taken  by  purchaser,  493    . 

TENANCIES. 

at  will  defined,  155. 

incidents,  156. 

termination,  157. 
from  year  to  year,  158. 

incidents,  160. 

termination,  161. 
at  sufferance,  163. 

creation,  163. 

incidents,  164. 

termination,  165. 
in  common  defined,  835. 

unities  necessai*y.  335. 

joint  mortgages,  336. 

partition  of,  344. 

creation,  158. 

TENANT. 

see  "Landlord  and  Tenant" 
under  feudal  system,  26. 
defined,  128. 

by  curtesy,  lease  by,  132 
in  dower,  lease  by,  132. 
in  common,  lease  by,  132. 

TENDER. 

discharge  of  mortgage  by,  230. 

TENEMENTS,  3. 

TENURE. 

defined,  26. 
kinds  of.  27. 


INDEX.  645 

[The  figures  raier  to  pagea] 


TENURE— Continued, 
by  knight's  service,  27. 
by  serjeanty,  28. 
by  grand  serjeanty,  28. 
by  petty  serjeanty,  28. 
in  frankalmoigne,  28. 
in  socage,  28. 
villein,  28. 
incidents,  29. 

aids,  29. 

marriage,  29. 

relief.  29. 

wardship,  29. 

escheat  and  forfeiture,  30. 
services  commuted  for  money  payments,  29. 
military  abolished,  29.  , 

statute  of  quia  emptores,  30. 
in  United  States,  31. 
unknown  forms  cannot  be  created.  40. 
of  future  estates,  303. 
in  capite,  27. 
in  chief,  27. 

TIME, 

unity  of,  in  joint  tenancies,  333. 
of  enjoyment,  estates  as  to,  279. 
of  execution  of  power,  317. 

TITHES,  349. 

TITLE. 

denned.  399. 

unity  of,  in  joint  tenancies,  333. 

acquisition  of,  by  state,  399. 

by  confiscation  and  escheat,  399. 
by  discovery,  conquest,  and  treaty,  399. 
by  transfer  from  individual,  399. 
under  power  of  eminent  domain,  399. 
descent  and  purchase,  399. 
acquisition  by  private  persons,  401. 
by  grant  from  state,  401. 
public  land  system,  402. 
certificate  and  patents,  402. 
pre-emption,  404. 
pre-emption  laws  repealed,  404. 


G46  INDEX. 

[The  figures  refer  to  pag^^s.] 

TITLE— Continued, 
conveyauce,  405. 
common-law  conveyances,  405. 
registered,  412. 

certificates  of.  413. 
transfers,  413. 

adverse  possession  abolished,  414. 
Indemnity  fund,  414. 
requisites  of  deeds,  414. 

property  to  be  conveyed,  415. 
granting  clause,  417. 
names  of  parties,  416. 
words  of  conveyance,  416. 
exceptions,  417. 
reservations,  418. 
habendum,  418. 

description  of  the  property,  419. 
plats  and  maps,  421. 
monuments,  422. 
courses  and  distances,  424. 
quantity,  425. 
appurtenances,  425. 
execution  of  the  writing,  426. 
consideration,  427. 
what  writing  necessary,  427, 
date,  428. 
alterations,  428. 
filling  blanks,  428. 
reading,  429. 
sealing,  429. 
signing,  430. 
power  of  attorney,  431. 
indentures  and  deeds  poll,  432. 
delivery  and  acceptance,  433. 

delivery  in  escrow,  435. 
acknowledgment,  436. 
witnesses,  430. 
registry,  439. 
covenants  for,  440. 

express  and  implied,  440. 
real  and  personal,  440. 
Independent  and  dependent,  441. 
of  seisin,  442. 


INDEX.  647 

[The  figures  refer  to  pages.] 

TITLE— Continued, 

when  broken,  442. 
how  broken,  442. 
against  incumbrances,   444. 

how  broken,  444. 
of  warranty,  44G. 
how  broken,  446. 
action  for  breach,  449. 
special  warranty,  446. 
for  further  assurance,  449. 
by  estoppel,  450. 

division  lines,  453. 
by  adverse  possession,  456. 
requisites  of,  456. 
seisin  and  disseisin,  458. 
effect  of  descent  cast,  459. 
must  be   actual,   459. 
ouster  necessary,  459. 
constructive  possession,  460. 
color  of  title.  460. 
Intention  to  disseise  necessary,  460. 
must  be  visible  or  notorious,  462. 
must  be  hostile  and  adverse,  463. 

when  possession  up  to  division  fence  is  adverse,  463. 
must  be  exclusive,  465. 
must  be  continuous,   466. 
tacking,  466. 
joint  disseisors,  466. 
against  whom  possession  Is  adverse,  468. 
disabilities  of  persons,  468. 
abandonment,  469. 

length  of  possession  necessary,  469. 
by  occupancy,  457. 
by  accretion,  470. 
alluvion,  470. 
by  devise,  472. 

description  of  property,  473. 
operative  words.  473. 
what  can  be  devised,  474. 
what  law  governs,  474. 
nature  of.  475. 
renunciation  of,  475. 


648  INDEX. 

[The  figures  refer  to  pages.] 

TITLE— Continued, 

revocation  by  alteration  of  estate,  476. 
lapsed  devises,  477. 
by    descent,    478. 

what  descends,  479. 
posthumous  children,  480. 
illegitimate  children,  4S0. 
advancements,  481. 

hotchpot,  482. 
canons  of  descent,  482. 

descending  and  ascending  lines,  482. 

preference  of  males.  482. 
in  collateral  lines,  485. 

collateral  heirs  and  ancestral  lands,  483. 

primogeniture,  483. 

whole  and  half  blood,  485. 

escheat,  485. 
by  Judicial  process,  486. 

conveyances  under  licenses,  486 

by  guardians,  487. 

by  personal  representatives,  487. 

of  settled  estates,  488. 

under  decrees,  488. 

partition,  488. 

specific  performance,  488. 

sales  on  execution,  489. 

effect  of  reversal  of  judgment,  490.  ■ 
tax  titles.  490. 

forfeiture,   490. 

ministerial  sale,  49L 

judicial  sale,  492. 

tax  deed.  492. 

redemption,    490,    492. 

estate  taken  by  purchaser,  493. 
eminent  domain,  494. 

compensation  for  land  taken  under  right  of,  495. 
procured  by  fraud  raises  constructive  trust,  270. 

TITLE  DEEDS, 

mortgage  by  deposit  of,  192. 
recitals  in,  constructive  notice,  210, 

TORRENS*  TITLE  SYSTEM,  412. 
TRADE  FIXTURES,  16. 


INDBX.  649 

[The  figures  refer  to  pages.] 


TRANSFER, 

of  estates  for  years,  147. 

by  operation  of  law,  149. 
of  joint  estates,  343. 
of  registered  titles,  413, 

TRANSITORY   SEISIN, 
as  giving  dower,  84. 

TREATY. 

acquisition  of  title  by,  399. 

TREES, 

when  real  property,   8. 

when  fixtures,  21. 

when  cutting  is  waste,  64. 

TRUSTEE, 
defined,  260. 
leases  by,  131. 
limitation  of  estate  of,  261. 
rights  and  liabilities  of,  271. 
interest  of,  272. 

possession  by,   not  adverse,  274. 
to  preserve  contingent  remainders,  293. 
disseisin  of,  is  disseisin  of  cestui  que  trust,  468. 

TRUST. 

deed  of,  may  be  a  mortgage,  190. 
defined,  252. 
classification  of,  257. 
executed  and   executory,  258. 
express.  258. 

creation  of,  260. 

precatory    words,    261. 

statute  of  frauds,  262. 

parties,   263. 
Implied.  264. 

resulting,  265. 

legal  title  only  conveyed,  266. 

consideration  paid  by   another,  267. 

failure  of  object  of  trust,  267. 

deed  to  wife  or  child,  268. 
constructive,  269. 

fraud  an  essential  element  of,  269. 

raised  by  titles  procured  by  fraud,  270. 

creditors  do  not  have,  271. 


650  INDEX. 

[The  figures  refer  to  pages.] 

TRUST-Contlnued, 

charitable,  defined,  274. 
objects  of.  275. 
creation,  275. 

distinguished  from  private,  274. 
beneficiary  indefinite,  276. 
doctrine  of  cy-pres,  276. 
perpetuities  and  accumulations,   276. 
when  subject  to  rule  against  perpetuities,  328. 
spendthrift,  396. 
by  operation  of  law,  statute  of  uses  does  not  operate  on,  254. 

TURBARY, 

common  of,  373. 

TURNPIKE  ROADS. 
franchises  for,  380. 

TYRRELL'S  CASE,  256. 

u 

UNITY. 

of  interest  In  joint  tenancy,  333. 

of  possession  in  joint  tenancies,  333. 

in  tenancy  in  common,  335. 
of  time  in  joint  tenancies,  333. 
of  title  in  joint  tenancies,  333. 

UNRECORDED   CONVEYANCES, 

see  "Registration." 
UNSOUND  MIND. 

persons  of,  power  to  hold  and  convey  realty,  383. 
URBAN  HOMESTEAD,  117. 
USE, 

sec  "Trust." 

defined,  252. 

origin,  252. 

upon  a  use,  statute  of  uses  does  not  operate  on,  254. 

V 

VENDEE'S  LIEN, 

an  equitable  mortgage.  194. 
VENDOR'S  LIEN, 

an  equitable  mortgage,  192. 
VESTED  INTERESTS, 

rule  against  perpetuities  does  not  apply  to,  326. 


INDEX.  ^^^ 


[The  figures  refer  to  pages.) 

VESTED  REMAINDERS, 

see  "Remainders." 
VILLEINAGE,  28. 
VILLEIN  TENURE,  28. 
VISIBLE  POSSESSION, 

necessary  in  acquiring  title  by  adverse  possession,  463. 

VOID  CONDITIONS.  172. 
VOLUNTARY  PARTITION,  344. 
VOLUNTARY  WASTE,  62. 
VOUCHING  TO  WARRANTY, 
in  common  recovery,  50. 

w 

WAIVER. 

of  homestead,  122. 

of  forfeiture  of  estate  on  conditions,  175. 

WALLS, 

see  "Party  Walls." 

WARDSHIP. 

an  incident  of  tenure,  29. 

WARRANTY. 

doctrine  of,  in  common  recovery,  51. 

assignment  of  mortgage  does  not  create,  211. 

covenant  of,  446. 
estoppel  by,  454. 
WARRANTY   DEEDS.    422. 

WASTE. 

equitable,  62. 

voluntary.  62. 

tenant  without  impeachment  for,  62. 

husbandry,  63. 

cutting  trees,  64. 

mines  and  quarries,  64. 

buildings  and  fences,  65. 

by  strangers,  liability  of  tenant  for,  65. 

as  incident  of  estate  during  coverture,  71. 

defeating  dower.  111. 

lessee  liable  for,  143. 

tenant  in  tail  not  liable  for,  49. 

life  tenant  liable  for,  62. 


652  INDEX 

[The  figures  refer  to  pages.] 

WASTE3— Continued, 

an  incident  of  tenancies  at  will,  158. 

by  mortgagor,  195. 

protection  of  future  estates,  304. 

by  joint  tenants,  342. 

remedies  for.  66. 

double  and  treble  damages  for,  68. 
WATER, 

when  rights  in  are  real  property,  4. 

easements  in,  368. 
subterranean,  371. 
surface,  371. 
WATER  COURSE. 

what  is,  369. 

artificial,  372. 
WAY. 

rights  of,  see  "Rights  of  Way." 
WEAKNESS  OF  MIND, 

as  affecting  capacity  to  hold  and  convey  realty,  383> 
WHOLE    BLOOD. 

descent  to,  485. 
WILLS. 

see  "Statute  of  Wills." 

of  married  women,  387. 

transfer  of  title  by,  473. 
WITNESSES, 

to  deeds,  439. 
WOMEN. 

see  "Married  Women.** 
WORDS  OF  LIMITATION, 

see  "Limitation." 
WRITING. 

what  requisite  in  deeds,  428. 
WRIT  OF  ENTRY, 

foreclosure  by,  244. 

Y 

YEAR  TO  YEAR, 

see  "Tenancy  from  Year  to  Year.** 

WBBT   PUBLISaiNO  CO.,  PBIMTEBB  AND  BTEBBOTVPKB«.  BT.  PADL,  MOTX. 


2^t?e  f)onibook  Scries 

Comprises  elementary  treatises  on  all  the  principal  sub- 
jects of  the  law.  The  books  are  made  on  the  same  gen- 
eral plan,  in  which  certain  special  and  original  feature  s 
are  made  prominent. 

Cl^e  "Jjornbook  plan" 

Is  to  set  forth  the  leading  principles  in  black-letter  (like 
this) 

And  to  give  the  necessary  amplification,  explanation,  ap- 
plication, etc.,  under  the  principles,  in  type  like  this.  The 
authorities  are  grouped  in  footnotes  at  the  bottom  of  the 
page.* 

This  shows  why  these  books  are  found  so  serviceable  as 
practitioners'  handbooks.  A  lawyer  may  want  to  be  re- 
minded of  the  law ;  in  that  case  he  wants  it  presented  in 
such  a  way  that  he  can  pick  out  what  he  needs  with  the 
least  trouble. 

*The  Hornbook  Series  now  includes  treatises  on  Aconey.  Admi- 
ralty, Bailments,  Bills  and  Notes,  Common-Law  IMcadiiiir.  Constitu- 
tional Law,  Contracts,  Corporations,  Criminal  Law,  Criminal  Pro- 
<'edure.  Damages,  Elementary  Law,  Equity  Jurisprudence.  Equity 
Pleading,  EA'idence.  Executors  and  Administrators,  Federal  .Juris- 
diction and  Procedure,  Insurance,  International  Law,  Interpreta- 
tion of  Laws,  Mining  Law.  Negligence,  Partnership.  Persons  and 
Domestic  Relations.  Public  Corporations,  Real  Property,  Sales, 
Torts  (2  vols.)  and  Wills. 


Uniform  price,  $3.75  a  volume,  delivered. 
Bound  in  American  Law  Buckram. 


West  Publishing  Co. 

St  Paul,  Minn. 

100  William  St.  225  Dearborn  St. 
New  York.  Chicago. 


CG55t)a 


^avvovos  on  Hecjiigcnce. 

1899.     G34  pages.     $3.75  delivered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Third  Persons. 

5.  Common  Carriers  of  Passengers. 

6.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

11,  Negligence  of  Municipal  Corporations. 


C05o9-1 


Black  on  Construction  anb 
3nterprctation  of  £atps. 

1S96.     509  pages.     $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  and  Treatises  on  Constitution- 
al Law,  Judgments,  etc. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Nature  and  Office  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory  Construction. 

4.  Statutory  Construction ;    Presumptions. 

5.  Statutory  Construction ;    Words  and  Phrases. 

6.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutory  Construction. 

8.  Interpretation  with  Reference  to  Common  Law. 

9.  Retrosiiective  Interpretation. 

10.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 
,  11.  Strict  and  Liberal  Construction.  , 

12.  Mandatory  and  Directory  Provisions. 

13.  Amendatory  and  Amended  Acts. 

14.  Construction  of  Codes  and  Revised  Statutes. 

15.  Declaratory  Statutes, 

16.  The  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 

tion. 

17.  Interpretation  of  Judicial  Decisions  and  the  Doctrine  of  Prec- 

edents. 


CB555>-2 


Slack's  Constttutional  taw, 

1910.     SGS  pages.     $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary.  Treatises  on  Judgments, 
Tax  Titles,  Bankruptcy,  etc. 

Third  Edition. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  Establishment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Government. 

6.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 

8.  The  Powers  of  Congress. 

9.  Interstate  Law  as  Determined  by  the  Constitution. 

10.  The  Establishment  of  Republican  Government. 

11.  Executive  Power  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legislative  Power  in  the  States. 

14.  The  Police  Power. 

15.  The  Power  of  Taxation. 

10.  The  Right  of  Eminent  Domain. 

IT.  Municipal  Corporations. 

IS.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  Public  Rights. 

20.  Constitutional  Guaranties  in  Criminal   Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws. 


C6559a-3 


Cl^ilbs  on  5urcti)sl?ip  anb 

1907.     572  pages.     $3.75  delivered. 

By  FRANK  HALL  CHILDS, 

of  the   Chicago    Bar. 


TABLE   OF   CONTENTS. 
Chap. 

1.  Definitions,  Parties,  Distinctions,  and  Oassifications. 

2.  Formation  of  the  Contract. 

3.  The  Statute  of  Frauds. 

4.  Construction  of  the  Contract. 

5.  Rights  and  Liabilities  as  Between  the  Creditor  and  the  Sure- 

ty. 

6.  Rights  and  Liabilities  of  the  Surety  and  of  the  Principal  as  to 

each  other. 

7.  Rights  and  Liabilities  of  Co-Sureties  as  to  each  other. 

8.  Parties  to  Negotiable  Instruments  Occupying  the  Relation  of 

Sureties. 

9.  Official  Bonds. 

10.  Judicial  Bonds. 

11.  Bail  Bonds  and  Recognizances. 


CG559-i 


Clark  on  Contracts. 

1904.     093  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr. 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 


Chap. 

1.  Contract  in  General. 

2.  Offer  and  Acceptance. 

3.  Classification  of  Contracts. 

4.  Requirement  of  Writing. 

5.  Consideration. 

G.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract. 

11.  Discharge  of  Contract. 

12.  Agency. 

13.  Quasi  Contract. 


CG559— 5 


Clark  on  Corporations. 

1907.     721  pages.    .'?3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition:  By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incoriwration. 

4.  Relation  between  Corporation  and  its  Tromoters. 

5.  Powers  and  Liabilities  of  Corporations. 

6.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations— Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


C6.JO9-0 


Clark's  Criminal  £atr>. 

1902.     517  pages.    §3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  tbe  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Defiuitiou  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 
G.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government. 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

IS.  Former  Jeopardy. 


C655D-7 


Clark's  Criminal  Proccburc. 

1895.     665  pages.     ?3.75  delivered. 
By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  Criminal  Law,"  aud  a  "Handbook  of 

Contracts." 


TABLE   OF   CONTENTS. 

Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading— The  Accusation. 
G.  Pleading— The  Accusation. 

7.  Pleading — The  Accusation. 

8.  Pleading — The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidence. 

15.  Habeas  Corpus. 

J 

CG559-8 


Crostpcll  on  (Sxecutors  anb 
Clbmtnistrators. 

1S97.     G96  pages.     .$3.7."  delivered. 
By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  \Yho  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors. 

9.  Sijecial  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations— Set-off. 

25.  Evidence  and  Costs. 


C6o59-9 


Costiijan  on  IHinina  'iaw. 

1908.     7Go  pages.     §3.75  delivered. 

By  GEORGE  P.  COSTIGAN,  Jr. 

Dean  of  the  College  of  I^w  of  the  University  of  Nebraska. 


TABLE    OF    CONTENTS. 

Chap. 

1.  The  Origin  and  History  of  American  Mining  Law. 

2.  The  Mining  Law  Status  of  the  States,  Territories,  and  Posses- 

sions of  the  United  States. 

3.  The  Laud  Department  and  the  Public  Surveys. 

4.  The  Relation   Between  Mineral  Lands  and  the  Public  Land 

Grants. 

5.  The  Relation  Between  Mineral  Lands  and  Homestead,  Timlier 

and  Desert  Entries. 
G.  The  Relation  Between  Mineral  Lands  and  the  Various  Public 
Land  Reservations. 

7.  The  Relation  Between  Mineral  Lands  and  Townsites. 

8.  Definitions  of  Practical  Mining  Terms. 
0.  Definitions  of  Mining  Law  Terms. 

10.  The  Discovery  of  Lode  and  Placer  Claims. 

11.  Who  INIay  and  Who  May  not  Locate  Mining  Claims. 

12.  The  Location  of  Lode  Claims. 

13.  The  Location  of  Mill  Sites. 

14.  The  Location  of  Tunnel  Sites  and  of  Blind  Lodes  Cut  by  Tun- 

nels. 

15.  The  Location  of  Placers  and  of  Lodes  within  Placers. 

16.  The  Annual  Labor  or  Improvements  Requirements. 

17.  The  Abandonment,    Forfeiture,   and    lielocation  of  Lode   and 

Placer  Mining  Claims. 

18.  Uncontested  Application  to  Patent  Mining  Claims. 

19.  Adverse  Proceedings  and  Protests  Against  Patent  Applications. 

20.  Patents. 

21.  Subsurface  Rights. 

22.  Coal  Land  and  Timber  and  Stone  Land  Entries  and  Patents. 

23.  Oil  and  Gas  Leases. 

24.  Other  Mining  Contracts  and  Leases. 

25.  Mining  Partnerships  and  Tenancies  in  Common. 

26.  Conveyances  and  Liens. 

27.  Mining  Remedies. 

28.  Water  Rights  and  Drainage. 
Appendices. 


C6559-9y3 


(Saton  on  €quity. 

1901.     734  pages.     $3.75  delivered. 

By  JAMES  W.  EATON, 

Editor    3d    Edition    Collier    on    Bankruptcy,    Co-Editor    American 

Bankruptcy  Reports.  Eaton  and  Greene's  Negotiable 

Instruments  Law,  etc. 


1 
1 


TABLE    OF   CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


CG559-10 


(Barbner  on  Wills. 

1903.     726  pages.     .$.3.75  tlelivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  History  of  Wills — Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

G.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 
be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

10.  Construction — Nature  and  Duration  of  Interests. 

17.  Construction — Vested  and  Contingent  Interests — Remainders 
— Executory  Devises. 

IS.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

—Lapsed  and  Void  —  Abatement  —  Ademption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Di.scussed. 


CG559-12 


(Beovq,e  on  Partncrst?tp. 

1S97.     GIO  pages.    $3.75  delivered. 
By  WILLIAM   GEORGE. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  and  EstablLshment  of  Relation. 

2.  Kinds  of  Partnersliips  and  Partners. 

3.  Cliaracteristic  Features  of  Partnerships. 

4.  Implied  Rights  and  Liabilities  Inter  Se. 

5.  Articles  of  Partnership. 

6.  Rights  and  Liabilities  as  to  Third  Persons. 

7.  Actions  Between  Partners. 

8.  Actions  Between  Partners  and  Third  Persons. 

9.  Dissolution. 

10.  Limited  Partnerships. 

11.  Joint-Stock  Companies. 


C6559-13 


^alc  on  Bailments  anb 
Carriers. 

1896.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE    OF    CONTENTS. 
Chap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailmeut.s  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit — Pledges. 

5.  Bailments  for  Mutual  Benefit — Hiring. 

6.  Innkeepers. 

7.  Carriei-s  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


CU55y— 15 


^alc  on  Damages. 

189G.    470  pages.     $3.75  delivered. 

By  WM.  B.  HALE, 

Author  of  "Bailmeuts  and  Carriers." 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles, 

2.  Nominal  Damages, 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph    Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 


CG.>:;9-ic 


f)ah  on  (Eorts. 

1890.     (J3G  pages.     .$3.75  delivered. 

By  WM.  B.  HALE. 

Autbor  of  "Kailments  and  Carriers,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liabilicy  for  Torts  Committed  by  or  witli  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


C6559-17 


^opUins  on  Keal  Property. 

189G.     589  pages.     $3.7."i  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 
Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  (Inantity— Fee  Simple 

4.  E.states  as  to  Quantity— Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional    Life   Estates. 
0.  Estates  as  to  Quantity— Legal  Life  Estates. 

7.  Estates  as  to  Quantity— Less    than    Freehold. 

8.  Estates  as  to  Quality  on  Condition— on  Limitation. 

9.  Estates  as  to  Quality— Mortgages. 
10.  Equitable  Estates. 

n.  Estates  as  to  Time  of  Enjoyment— Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 
IG.  Title. 


CG559-18 


fyu}{}cs>  on  Clbiniralti). 

I'JOl.     504  pages.     .$3.75  delivered. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE    OF    CONTENTS. 

The  Origin  and  History  of  tlie  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Sulgect-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Respondentia  ;  and  Liens  lor  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  l)y  the  Ilarter  Act  of  February  V\  lSn.3. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  I'leadiug  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation.  Including: 

(1)  The  International   Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Ct)ast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(G)  The  Act  of  March  ;>.  18!)!»,  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts.  Including: 

(1)  The  Act  of  March  3,  1S.")1.  as  Amended. 

(2)  The  Act  of  June  2tj,  1SS4. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels, 
o.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 
(5.  Suits  in  Forma  Pauperis. 
7.  The  Admiralty  Rules  of  Practice. 


C6551>-19 


^ugl^cs  on  ^cbcval 
3urisbiction  anb  Proccbure. 

1904.    G34  pages.    $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Huglies  on  Admiralty."  and  Lecturer  at  the  George 
Washington  University  Law  School. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Introduction — What  it  Comprehends. 

2.  The  District  Court — Its  Criminal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District     Court — Criminal     Jurisdiction — Miscellaneous 

Jurisdiction. 

5.  The  District  Court— Bankruptcy. 
6-8.  Same — Continued. 

9.  The  District  Court — Miscellaneous  Jurisdiction. 

10.  The  Circuit  Court — Original  Jurisdiction. 

11-12.  Same — Continued. 

13.  The  Circuit  Court — Jurisdiction  by  Removal. 

14-15.  Same — Continued. 

IG.  The  Circuit  Court— Jurisdiction  by  Remova-1— Original  Juris- 
diction of  the  Supreme  Court — Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 
diction— Courts  of  Law. 

IS.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 
diction— ^Courtij  of  Equity. 

19.  Same — Continued. 

20.  Appellate  Jurisdiction— 'The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction — The  Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


C6559-20 


3n9ersoU  on  Public 
Corporations. 

1901.     73S  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  the  Uuiversity  of  Tennessee  School  of  Law. 


TABLE    OF   CONTENTS. 

Part  1.— QUASI  CORPORATIONS. 
Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liahilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal    Corporations. 

G.  Their  Creation — How — By  What  Bodies — Subject  to  What  Re- 
strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employes. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15.  Streets,  Sewers,  Parks,  and  Public  Buildings. 
IG.  Torts. 

17.  Debts.  Funds,  Expenses,  and  Administration. 
IS.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

23.  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Corporations. 


CG559-21 


3a$gai*b  on  Corts. 

1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS. 

Part  1.— IN  GENERAL. 
Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

CG559-22 


HTcKclrcy  on  €t)ibcncc. 

1907.     540  pages.     .$:?.7o  delivorod. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Conimou-Law  rioading,"  etc. 
Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

S.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 
Logically  Relevant. 

9.  Character. 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

1.5.  Demurrers  to  Evidence. 

06559-23 


rtorton  on  Bills  anb  Ticks. 

1900.     GOO  pages.     .$3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 
Third  Edition:    By  Francis  B.  Tiffany. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 

6.  Transfer. 

7.  DefeDses  as  against  Purchaser  for  Value  without  Notice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


CG5d9-24 


5t?tpman  on  Coinnion  £air 
Plcabiuy. 

1895.     G15  pages.  $3.75  ck-liverod. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Forms  of  Action. 

2.  Forms  of  Action. 

3.  Tlie  Parties  to  Actions. 

4.  Tlie  Proceedings  in  an  Action. 

5.  The  Declaration. 

G.  The  Production  of  the  Issue. 

7.  Materialty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 

9.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  in  Pleading. 

12.  INIiscellaneous  Rules. 
Appendix. 


CG559-25 


5l7ipman  on  (f  qutty 
PIcabing. 

1897.     G44  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

Author  of  "Sliipman's  Commou-Law   Pleading." 


TABLE    OF   CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  suit. 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 

6.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


CG559-2G 


5mitl/s  elementary  taw. 

1896.     3G7  pages.     .$.'^.75  (lelivered.. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  the  I'niversity  of  Michigan. 


TABLE    OF   CONTENTS. 
Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  I'ersons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE   SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incor])oreal  Hereditaments. 
1.5.  Estates  in  Real  Property. 

10.  Title  to  Real  Property. 
17.  Personal  I'roperty. 

15.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 
2G.  Procedure. 

27.  Trials. 


CG.J.19-2T 


{Tiffctnij  on  Ctgcncy. 

1903.     GOO  pages.     $3.7o  aelivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  "'Law  of  Sales,"  etc. 


TABLE    OF    CONTENTS. 

Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continued) — Ratification. 

4.  What  Acts  Can  be   Done  by  Agent — Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND   THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person — Contract. 

9.  Same  (continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts'). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 

AND  agi:js't. 

1.5.  Duties  of  Agent  to  Principal. 
10.  Duties  of  Principal  to  Agent. 
Appendix. 


C(;.jr,i)--J8 


(Tiffany  on  Persons  anb 
Domestic  delations. 

1909.     GuG  pages.     $3.75  delivered. 

By  WALTER  C.  TIFFANY. 

Second  Edition :  Edited  by  Roger  W.  Cooley. 


TABLE    OF    CONTENTS. 
Chap. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rigbts  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  I'arents. 

10.  Rigbts  of  Parents  and  of  Cbildren. 

Part  3.— GUARDIAN  AND  AVARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

Part   4.— INFANTS,   PERSONS    NON    COMPOTES    MENTIS. 
AND   ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part   5.— MASTER  AND    SERVANT. 

16.  Creation  and  Termination  of  Relation. 


C6559a-29 


Ciffany  on  Sales. 

1908.     534  pages.     $3.75  delivered. 
By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  iu  Passing  the  Property — Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Pietentiou  of  Possession. 
6    Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act. 


CG559a-30 


Vance  on  3n5urana\ 

1896.     GS3  pages.     .<;:1.75  dolivcred. 

By  WILLIAM  REYNOLDS  VANCE, 
Professor  of  Law  in  the  George  Washiugton  University. 


The  principal  object  of  this  treati.se  is  to  give  a  consistent  state- 
ment of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  iiiles  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the  mucii 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Parties. 

Insurable  Interest. 
Making  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment, 
Consent  of  the  I'arties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire  Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insurance. 

Guaranty,  Credit,  and  Liability  Insuranca 
Appendix. 


CG559-31 


IPilson  on 
3nternatio]ial  £axp. 

1910.     G23  pages.     .$3.75  delivered. 
By  GEORGE  GRAFTON  WILSON. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Persons  in  International  Law. 

2.  Existence,  Independence  and  Equality. 

3.  Property  and  Domain. 

4.  Jurisdiction. 

5.  Diplomatic  Relations. 

G.  Consular  and  Other  Relations. 

7.  Treaties  and  Other  International  Agreements. 

8.  Amicable  Means  of  Settlement  of  International  Differences. 
0.  Xon-Amicable  ^Measures  of  Redress  Short  of  War. 

10.  Nature  and  Commencement. 

11.  Area  and  General  Effect  of  Belligerent  Operations. 

12.  Rights  and  Obligations  During  War. 

13.  Persons  During  War. 

14.  Property  on  Land. 
1.5.  Property  on  Water. 
IG.  Maritime  Capture. 
17.  Rules  of  War. 

15.  Military  Occupation  and  Government. 

19.  Prisoners,  Disabled  and  Shipwrecked. 

20.  Xon-IIostile  Relations  between  Belligerents. 

21.  Termination  of  War. 

22.  Nature  of  Neutrality. 

23.  Visit  and  Search. 

24.  Contraband. 
2.J.  Blockade. 

2G.  Continuous  Voyage. 

27.  Unneutral  Service. 

28.  Prize. 


C6r).")9-32 


.IFO«NU 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 

-     --  ■■"i|||'H|i|'ii'|  I 


AA    000  772  213    5 


